IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


// 


k<^ 


^^ 


/. 


fc 


1.0 


1.1 


1.25 


ui    lifS 

£    1^    12.0 


HtUu 


y.  11.6 


6" 


Photographic 

Sciences 

Cbrporation 


23  WIST  MAIN  STRUT 

WnSTM.N.Y.  :45M 

(716)S73-4S03 


^Ju 

'^.V^ 


'^ 


CIHM/ICMH 

Microfiche 

Series. 


CIHM/ICMH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historical  Microreproductlons  /  Institut  Canadian  de  microreproductions  historiques 


Technical  and  Bibliographic  Notes/Notes  techniques  et  bibliographiques 


The 
tot 


The  Institute  has  attempted  to  obtain  the  best 
original  copy  available  for  filming.  Features  of  tMs 
copy  which  may  be  bibliographically  unique, 
which  may  alter  any  of  the  images  in  the 
reproduction,  or  which  may  significantly  change 
the  usual  method  of  filming,  are  checked  below. 


□    Coloured  covers/ 
Couverture  de  couleur 

□   Covers  damaged/ 
Couverture  endommag6e 

□   Covers  restored  and/or  laminated/ 
Couverture  restaur^  et/ou  pelliculAe 


D 


D 
D 
D 

n 


n 


Cover  title  missing/ 

Le  titre  de  couverture  manque 


nn    Coloured  maps/ 


D 


Cartes  gdographiques  en  couleur 

Coloured  ink  (i.e.  other  than  blue  or  black)/ 
Encre  de  couleur  (i.e.  autre  que  bleue  ou  noire) 

Coloured  plates  and/or  illustrations/ 
Planches  et/ou  illustrations  en  couleur 


Bound  with  other  material/ 
ReliA  avec  d'autres  documents 

Tight  binding  may  cause  shadows  or  distortion 
along  interior  margin/ 

La  re  iiure  serr6e  peut  causer  de  I'ombre  ou  de  la 
distortion  le  long  de  la  marge  intirieure 

Blank  leaves  added  during  restoration  may 
appear  within  the  text.  Whenever  possible,  these 
have  been  omitted  from  filming/ 
II  se  peut  que  certaines  pages  blanches  ajout6es 
lore  d'une  restauration  apparaissent  dans  le  texte. 
mais,  lorsque  cela  itait  possible,  ces  pages  n'ont 
pas  6ti  filmAes. 


Additional  comments:/ 
Commentaires  supplAmentaires; 


L'Institut  a  microfilm^  le  meilleur  exemplaire 
qu'il  lui  a  M  possible  de  se  procurer.  Les  details 
de  cet  exemplaire  qui  sont  peut-Atre  uniques  du 
point  de  vue  bibliographique.  qui  peuvent  modifier 
une  image  reproduite.  ou  qui  peuvent  exiger  une 
modification  dans  la  mithode  normale  de  filmage 
sont  indiquAs  ci-dessous. 


I     I   Coloured  pages/ 


Pages  de  couleur 

Pages  damaged/ 
Pages  endommagies 

Pages  restored  and/oi 

Pages  restauries  et/ou  pellicul6es 

Pages  discoloured,  stained  or  foxe< 
Pages  ddcolor^es.  tachet^es  ou  piqudes 


I — I   Pages  damaged/ 

I      I    Pages  restored  and/or  laminated/ 

PyT^  Pages  discoloured,  stained  or  foxed/ 


□   Pages  detached/ 
Pages  d^tachies 

r^7|   Showthrough/ 
I — I   Transparence 

I     I   Quality  of  print  varies/ 


n 


Quality  inigale  de  I'impression 

Includes  supplementary  material/ 
Comprend  du  materiel  suppiimentaire 

Only  edition  available/ 
Seule  Edition  disponible 


If. 


Thfl 
poa 
ofl 
filn 


Orii 
bee 
the 
sioi 
oth 
firs 
sioi 
ori 


The 
sha 
TIN 
whi 

Mai 
diff 
enti 
beg 
righ 
reqi 
met 


Pages  wholly  or  partially  obscured  by  errata 
slips,  tissues,  etc.,  have  been  refilmed  to 
ensure  the  best  possible  image/ 
Les  pages  totalement  ou  partiellement 
obscurcies  par  un  feuillet  d'errata,  une  pelure, 
etc.,  ont  6t6  film6es  A  nouveau  de  fagon  A 
obtenir  la  meilleure  image  possible. 


This  item  is  filmed  at  the  reduction  ratio  checked  below/ 

Ce  document  est  iWrni  au  taux  de  reduction  indiqui  ci-dessous 

10X                           14X                            18X                           22X 

26X 

XX 

i 

\y' 

1 

12X 

18X 

aox 

MX 

28X 

32X 

1 

The  copy  filmed  here  hes  been  reproduced  thanke 
to  the  generosity  of: 

Metropolitan  Toronto  Libranr 
Canadian  History  Department 


L'exemplaire  filmi  fut  reprodult  grAce  A  la 
ginirosit*  de: 

Metropolitan  Toronto  Library 
Canadian  History  Department 


The  images  appearing  here  are  the  best  quality 
possible  considering  the  condition  and  legibility 
of  the  original  copy  and  in  keeping  with  the 
filming  contract  specifications. 


Las  images  suivantes  ont  6t6  reproduites  avec  le 
plus  grand  soin.  compte  tenu  de  la  condition  et 
de  la  nettet*  de  l'exemplaire  film*,  et  en 
conformity  avec  les  conditions  du  contrat  de 
filmage. 


Original  copies  in  printed  paper  covers  are  filmed 
beginning  with  the  front  cover  and  ending  on 
the  last  page  with  a  printed  or  illustrated  impres- 
sion,  or  the  back  cover  when  appropriate.  All 
other  original  copies  are  filmed  beginning  on  the 
first  page  with  a  printed  or  illustrated  impres- 
sion, and  ending  on  the  last  page  with  a  printed 
or  illustrated  impression. 


Les  exemplaires  originaux  dont  la  couverture  en 
papier  est  imprim6e  sont  filmfo  en  commen9ant 
par  le  premier  plat  et  en  terminant  soit  par  la 
derniire  page  qui  comporte  une  empreinte 
d'impression  ou  d'illustration,  soit  par  le  second 
plat,  salon  le  cas.  Tous  les  autres  exemplaires 
originaux  sont  filmfo  en  commenqant  par  la 
premiere  page  qui  comporte  une  empreinte 
d'impression  ou  d'illustration  et  en  terminant  par 
la  dernlAre  page  qui  comporte  une  telle 
empreinte. 


The  last  recorded  frame  on  each  microfiche 
shall  contain  the  symbol  ^»-  (meaning  "CON- 
TINUED"), or  the  symbol  V  (meaning  "END"), 
whichever  applies. 


Un  des  symboles  suivants  apparattra  sur  la 
dernidre  image  de  cheque  microfiche,  selon  le 
cas:  le  symbols  —^  signifie  "A  SUIVRE".  le 
symbols  V  signific  "FIN". 


l\/laps,  plates,  charts,  etc..  may  be  filmed  at 
different  reduction  ratios.  Those  too  large  to  be 
entirely  included  in  one  exposure  are  filmed 
beginning  in  the  upper  left  hand  corner,  left  to 
right  and  top  to  bottom,  as  many  frames  as 
required.  The  following  diagrams  illustrate  the 
method: 


Les  cartes,  planches,  tableaux,  etc.,  peuvent  6tre 
f ilmfo  i  des  taux  de  reduction  diff^rents. 
Lorsque  le  document  est  trop  grand  pour  dtre 
reprodult  en  un  seul  cliche,  11  est  film6  d  partir 
de  I'angle  sup6rieur  gauche,  de  gauche  it  droite, 
et  de  haut  en  bas,  en  prenant  le  nombre 
d'images  n^cessaire.  Les  diagrammes  suivants 
illustrent  la  mdthode. 


1  2  3 


1 

2 

3 

4 

.      5 

6 

if 


V 


\\ 


V 


a-  y 


4?        0 


THACTS 


ON   THl 


.        «.  « 


.vT^ 


4 

^ 

'%  - 

V 

OREGON    aUESTION. 


"I 

/ 

/ 


.  ■.»'      <;.*■ 


.«,■       « 


S  f^it 


•* 


BY  AN  AMERICAN. 


...v^.  •.•/;.• 


**N 


NEW  YORK 
W.  TAYLOR,  9  A8T0R  HOUSE-BALTUORB,  W.  TAYLOR  It  CO. 

1846.  r 


hlmriiiffMfyiwi 


^iitii 


■i^-0   ?b\' 


Kim-     y 


9' 


'^  ■      V 


It's 


*'  •* 


t 


o^ 


^f 


\*  V. 


JUN20  19$S 


«-N.. 


.?*«» 


'V 


'4t 


* 


* 


*vi> 


.#■ 


TUCfftOlCIM:  OREOtm  dtKiftoif, 


«'U" 


iMbM  MBlriM  fethM  bUaima  bf  VatttkCk  U,  |uj|^^ 

ik«i<ditbD,N.Y.  1796)  'AUnnUndlavoMiaful^P^^  ^^'"^ 
OiMt  bwvBOi  fwtftOHi  into  Hm  poM#m  oi  ■iir«M{  ■n^w  tUgl^ 
haigteUwawtpoinwor.  Whaa  tfw<d5»i>aiitfflttjM>>  opontty  wfa>y 
Ubitod  Md  wilhoata  aBMftTt  H  way  Uwfolly  tatopoiMwiim  <rf tt »  ndnl- 
tw  itliM  Mflktonlly  mad*  koQwii  iti  uriU  > Hdt  mpasi,  it  cHUUrt  1m^^ 
IpiTdltifitbyaaodMr.  Thai  afMrifMocp  goiag  on  Ow  diwoTwy*  fmmiiiti 
witliaoomini«ioDfhunUidrwv««igB,MdinMti^  ^ 

dMIKt  «00lltri«it  jbttYWttkMl  fMMMktl^  ^ 

,.^  AU  tid«  h—  hMm  oobmbobIt  ■■■noiliid  v  yxniimAiii  wm-  •oon  tOmt  f#^ 

l«W«&bf«rMlpOiMMiOB. 

'  BaiU  ia  qoMtioasd  whatW  a  utioB  nwr  not  UmiippfOp^ 
by  aPMtaly  tiUoff  poiMHiMof  •  ooiiQtiy«  wUoh  i(  rMl^  doM  iMt  ooMf^ 

•dt  li&tbia  munM  iMO^  to  itaplf  oiaeb  not*  thM  it  k  aU*  to  F9^ 
eoMvato.  UiaaotdilBMiU  to'datovifOna^tbatnehAJNt^^ 
abMibitely  coatrwy  to  tba  law,  and  oppiMito  to  tha  ▼!««»  of  Htfnnb  wb^ 
gjUP^^gaithiniMAtaMpply  thawantaof  maaitt  MBiaraLtv  tolM^ 
i«ti&tht  rifbt of appsopriatiiy  toitnlf  a eoiutiy  bot  Car tbo  oao it  o^Mf 
of  it>  and  iMrt  to  Uadwr  odkaca  ficooi  laapioiliig  it.  Tbo  law  of  iimM|i 
thMi  only  aoiuMvlodgaa  tbapcopor^  aad  soToraifQ^  of  a  Mtioft  of^ 

inbaUtod  oa«iitiiit>  of  wbieb  t|My  aball  ipUy.  aiid  bi  «iet^  tak»  foaMr 
aion,bi  wbiflbtb^  ahaU  gam  aatl|apia»a,  or  of  wbJch  tb«y  ihilIaHk•M• 
''tlil  i|aa« ; ,- 

'InnaU^t wbioaai^fltMabwr*  "to*  ""^^  dsa^  09!PWipi»i»  «|lli 
thaMif  oOiat  MNioaa  bittataotod  aMw  aaotpn^Ma  to  abiMf  *a^  N^ 

•bomilMiC fid»«a«Mioiqrr tbpi«i  it  fKooadad  fiPMi  tb»j;ap1atM.  <f<^ 
Plitia,!rMi«?*W%|i««l^*f^*  *^ 

\:«iaif.*ii^,ofi«-p.;^ 


n 


* 


$1 


tr 


bearing  a  natioiial  commiMion,  the  fruits  of  the  diioovery  belong  to  the 
nation  whose  commisiion  be  bears. 

2nd.  That  when  such  a  discovery  is  made  by  a  mere  private  adventurer 
bearing  no  national  commission,  the  fruits  of  it  belong  to  the  individual 
himself. 

3rd.  That  the  rights  acquired  under  such  a  discovery,  are  subject  to  the 
■**    two  folloveing  conditions,  viz :         ...... 

Ist  That  they  ire  publicly  claimed  at  the  time. 
'-       2nd.  That  the  country  shall  be  occupied  and  settled  within  a  reasonable 
^  period;  and  if  either  of  these  things  is  unreasonably  delayed,  the  country  is 
ben  open  to  all  mankind. 

It  might  perhaps  be  sufficient  to  allege,  in  behalf  of  these  rules,  their  evi- 
dent tendency  to  advance  the  interests  of  mankind,  by  encouraging  the  ex- 
ploration of  the  whole  earth,  as  well  by  individuals  ais  by  nations,  and  by 
■,'-,  promoting  the  settlement  of  all  such  parts  of  it  as  may  be  suitable  for  the 
abode  of  the  human  race;  and  the  manifest  fact  that  they  have  no  injurioni 
f^  tendency  whatever.  As  regards  the  first  rule,  this,  we  think  it  will  be  ac- 
knowledged by  all,  is  reason  enough  to  assign  for  it.  The  second  and  third 
rnles,  however,  tuny  be  thought  by  some  tu  require  farther  elucidation, 
and  we  shall  accordingly  make  them  the  subject  of  more  particular  comment. 
Ab  to  the  second  rule,  viz :  that  when  an  uninhabited  country  is  discovered 
by  a  mere  private  adventurer,  not  having  a  national  commission,  the  fruits 
of  the  discovery  are  his  own,  it  is  true  that  Vattel  does  not  state  the  rule  in 
ezprcsu  terms ;  yet  it  seems  to  be  clearly  implied  in  what  ho  does  say  ;  for 
he  evidently  considers  it  essential  to  the  validity  of  a  national  claim  to  an 
uninhabited  country  on  the  ground  of  original  discovery  by  the  nation  set- 
ting up  such  claim  that  the  discovery  should  have  been  made  under  a  com- 
mission of  such  nation.  He  makes  a  manifest  distinction  between  a  disco- 
very ao  made,  and  a  discovery  made  without  such  commission.  What 
that  distinction  is,  he  does  not  indeed  explain ;  and  much  leu  does  he  assign 
any  reason  for  it,  or  even  bint  at  any  reasons. 

We  are  left  then  to  enquire  for  ourselves  what  this  distinction  is,  and 
what  is  the  reason  for  it ;  and  for  these  we  need  look  no  further  than  to  the 
great  fundamental  principle  of  universal  jarisprudence — of  the  law  of  na- 
tions as  wcl'.  as  of  the  municipal  law  of  all  civilized  countries — which  as- 
signs the  fruits  of  industry  and  integrity,  of  energy  and  enterprise,  to  the 
parties  by  whom  these  qualities  have  been  soccessfuliy  exerted  in  securing 
such  fruits.  It  makes  no  difference  in  principle,  whether  the  exertion  has 
been  nude  by  a  nation,  or  by  anindividual— if  a  nation  has  made  it,  the  re- 
salts  belong  to  the  nation  ;  if  an  individaal  has  made  it,  they  belong  to  him. 


■■.IS 


J  belong  to  the 


e  subject  to  the 


TbeM  raralu  indeed  mej  in  MtM  MMt  be  of  raoh  •  peealiw  chMMtet 
or  hit  own  pecaliar  oirounutuoet  mej  be  «uoh,  that  an  individoal  nif 
find  it  exceedingly  diSoall,  if  not  ebiolatel/  impouible,  to  approprintt 
them,  even  partially,  to  hi*  own  exdative  benefit,  or  be  may  not  think  It 
worth  hia  while  to  make  the  attempt— he  may  be  aatiafied  with  the  meet 
honour  reralting  from  the  achievement,  but  in  all  caaea  he  haa  the  right  to 
claim  them  if  he  aeea  fit,  and  appropriate  them  if  he  can.  Hence  it  foUowa, 
that.wbun  the  diacovery  of  an  uaiobabited  country  is  the  result  of  priTat« 
enterprise,  the  fruits  of  such  discovery  belong  as  much  to  the  individual  by 
whom  that  enterprise  was  accomplished,  as  they  beiuug  to  a  purticular  nn- 
tipn,  when  such  discovery  has  been  madu  by  such  nation;  and  ibat  tbedit 
ficolty  which  an  icdividual  must  necessarily  experience  in  an  attempt  to 
colonize  such  country,  is  not  a  valid  objt^ctiun  tu  his  claiming  that  right  if  be 
aeesfit  to  dosu.  it  may  be  further  observed  that  if  the  individual  himseil 
is  either  unwilling  or  unable  tudo  auy  thing  (oward«  the  settlement  of  the 
eonntry,  he  can  assign  bis  rights  far  a  valuable  coosideraiion,  or  he  may  give 
them  away  either  tu  some  ot  aer  iudividual,  or  ussociatiun  of  individnall,  or 
to  aome  sovereiga  udtioa,  either  his  uwu  'jr  aay  ochdr  at  hi*  own  pleasure. 

If  the  preceding  views  are  correct,  and  we  d<»  not  see  ho<y  they  can  bo 
qaeationed,  the  rule  secomiiy  above  stated  is  as  clear  and  certain  as  die 
first ;  and  we  jccurdiiigly  proceed  to  the  examination  <if  the  third  ml'  i'wi  t 
That  the  rights  ac<iuired  uudar  siich  a  discovery  are  subject  to  the  follumrtg 
oondiiiuns : 

1st.  That  they  are  publicly  claimed  at  the  time. 

2nd.  That  the  coimiry  shtll  bd  numi^ied  a  i.l  ujttldl  within  a  reasonable 
period  ;  and  if  either  of  these  tiiiugs  is  uiireasoualily  deluyed,  the  country  ia 
ia  then  open  to  all  muiiKiud. 

With  respect  to  the  fir^t  condition  espressuti  in  thH  rule,  viz ;  that  righta 
acquired  must  be  puit  iciy  claiHied  at  the  time,  itso'ij>ict  is  to  compel  dis* 
covers  of  uuiuhabited  countries,  to  niaittj  kintwu  tu  ittd  rest  of  the  world, 
without  any  n^^edtess  delay,  wliat  ara  iheic  tutriiiiiuM  ,i4  regirds  the  ooott^ 
tries  discovered— whether  tliey  mean  to  avail  iheinoulveauf  their  newly  aO> 
quired  rights  by  appropriating  ilie  re«iilii  of  iheir  ditc  i>reries  M  th  -ir  owa 
ose,  or  not.  MankinJ  Ituvaii:!  >  )vi  (m.iu  I  V'jr/  i.ii  i  »■  1 1'.  iaterjst  tu  tcujw* 
ing  this,  and  thcTefore  have  a  rigtit  lo  know  it  ' 

If  a  discoverer  were  allowed  to  keop  IiIh  ■.iimitinii't  lo  iiiinself— il'he  could 

do  this  without  iinpariiig  his  right,  the  H<3ttleiii:iiii  ot  iti*  uewlv  discovered 

country  might  be  long  deiayeiJ,  to  die  pri-jn'liuH  •)'  im  t  i  mJ  u-  l>irge.  O.her 

adventurers  might  liesitate  to !ittem|>t  the  gettleinrnt  nUx  country  ho  oituated  | 

for  such  attempts  would  al  wuvs  he  liuUI:'  to  l)i>  ititcrro  •  I'^il  hikI  i'riiNi rated  by 

the  original  discoverers,  and  aucIi  inu'rrii{>ti>iii>t  >m<ri!ir.   r  vvmil.t  alwayabo 

2* 


ll 


•tMnded  with  diognr  to  the  peace  of  the  world.  Hence  the  propriety  tba 
abtolute  necetsit/,  of  this  condition.  Hence  the  neceuity  of  holding,  that 
without  a  compliance  with  thi*  condition,  no  right  can  be  claimed  under  the 
diioovery. 

la  what  manner  thii  is  gnnerally  complied  with  in  the  caae  of  national  die  • 
coreriei,  Mons.  Vattel  hat  pointed  oat,  viz.,  the  discoverer  makes  an  actual 
entry  into  the  country,  audtaices  possession  in  the  name  of  the  nation  whose 
commission  he  bears— and  Mons.  Vattel  should  haye  added,  that  of  this  c«- 
remony  a  record  or  memorandum  is  made,  which  at  the  first  opportunity  b 
duly  published,  with  an  account  of  the  discovery.  When  these  steps  have 
been  taken,  everything  lias  then  been  done,  which  can  reasonably  be  reqoir 
3d,  to  inform  the  world  of  the  discovery  and  the  rights  claimed  under  it,  and 
the  world  is  then  bound  in  reason  to  take  notice  of  the  discovery  and  re« 
spect  the  rights  so  claimed.  The  ceremony  of  landing  and  laking  formal 
possession  in  the  name  of  the  nation,  does  not,  however,  seem  to  be  essen- 
tial; any  other  mode,  we  conceive,  of  making  known  the  intentions  of  the 
nation  to  claim  the  country  will  answer  the  purpose  just  as  well,  provided 
h  be  equally  effectual.  Thus  a  nation,  it  seems,  might  make  known  both 
the  discovery  and  the  rights  claimed  under  it,  by  a  public  proclamation,  and 
by  causing  copies  of  such  proclamation,  duly  authenticated,  to  be  delivered 
to  the  proper  authorities  of  all  other  nations;  and  many  other  modes  may 
easily  be  imagined.  The  mode  pointed  out  by  Mons.  Vattel,  it  must  never, 
tiieless  be  admitted,  is  in  general  the  easiest,  simplest,  and  best ;  and  hae 
therefore  been  generally,  as  far  af>  we  know,  universally  adopted. 

The  same  mode,  it  seems,  may  also  be  employed  in  the  case  of  an  iodi* 
vidnal  discoverer ;  and  indeed  we  cannot  readily  see  what  contrivance,  ax* 
cept  actual  landing  and  actnal  taking  possession  in  his  own  name,  and  th* 
publication  of  these  fiMts,  together  with  an  account  of  the  discovery,  oonld 
answer  his  purpose.  An  individual  in  such  a  case,  we  apprehend,  would 
be  bound  to  declare  his  inteutions,  with  all  the  formally,  and  in  the  most 
aolemu  mauner,  which  the  natnro  of  the  case  admitted.  If  he  could  land 
and  take  possession,  he  would  be  bound  to  do  so,  and  ought  not  to  content 
himself  with  sim|>ly  declaring  his  intentions  in  the  published  account  of 
his  diacuvery.  A  declaration  so  made  might  not  command  that  confidence 
lb  his  sincerity,  which  an  actual  landing  and  taking  possession,  when 
practicable,  could  hardly  fail  to  inspire.  But  when  a  landing  is  imprao* 
Jcable  ur  dtugerous,  that,  it  seems,  should  excuse  the  omission ;  for  if 
hat  fact  is  stated,  together  with  the  intentions  of  the  discoverer  in  the  pub* 
(Ishfld  account  of  the  discovery,  the  reason  of  the  omission  will  be  seen, 
and  such  omiMion  will  furnish  no  ground  for  doubting  whether  or  not  ha 
it  in  earnest  in  the  claim  which  he  pretends  to  set  up.      In  the  course  of 


oprietjr  tb« 
lolding,  tbat 
id  under  the 

aational  dis  • 
m  an  aotaal 
ition  whose 
it  of  this  ce- 
>portnni^  ia 
)  step*  hare 
7  be  reqoir 
mder  it,  and 
rery  and  re- 
king  formal 
to  be  eaten- 
itionaof  the 
>1I,  provided 
known  both 
mation,  and 
M  delivered 
modes  may 
most  never, 
ist ;  and  haa 
d. 

>  of  an  faidi* 
rivanee,  ex- 
me,  and  the 
ivery,  conld 
end,  wonld 
in  the  moat 
)  could  land 
It  to  content 
I  account  of 
t  confidence 
ision,  when 
{  is  imprae* 
tion;  for  if 
in  the  pub- 
ill  be  seen, 
sr  or  not  he 
le  course  of 


ttiese  tracts,  we  shall  probably  have  occasbn  to  submit  some  Ihrther  ob- 
servations on  the'  subject  of  the  publicity  which  an  individual  discoverer 
of  an  uninhabited  country,  claiming  the  fruits  of  his  discovery,  is  bound  to 
give  to  such  discovery  and  claims:  and  the  different  modes  which  he  may 
pursue  in  making  them  public.  We  shall  reserve  them,  however,  for 
another  place,  conceiving  that  we  have  said  enough  on  that  count  for  the 
present. 

Our  next  head  of  remark,  is  the  second  condition  of  the  third  rule,  ris 
that  the  newly  discovered  country  shall  be  actually  occupied  and  settled 
within  a  reasoLable  time.  This  also,  it  will  be  seen  on  reflection,  is  an  in- 
dispensable condition.  The  interests  of  mankind  require  that  the  country 
should  be  settled  with  all  convenient  speed,  and  without  this  condition  the 
ultimate  settlement  of  the  country  is  likely  to  be  retarded  by  the  discovery, 
rather  than  accelerated;  for  in  every  case  of  such  a  discovery,  there  is  al- 
ways a  strong  probability  that  if  the  discovery  had  not  been  made  at  that 
particular  time  and  by  that  particular  nation  or  adventurer  who  actually 
made  it,  the  same  or  some  equivalent  discovery  soon  would  have  been  made 
by  some  other  adventurer,  or  some  other  nation^  who  would  have  taken 
measures  for  oobnixing  it;  and  by  allowing  the  actual  discoverer  to  take  hia 
own  time  for  settling  the  country,  the  world  is  cut  off  from  the  benefit  of 
this  contingency,  ao  long  aa  he  remains^naotive.  Hence  the  necessity  of 
■  holdiog,  that  if  the  first  discoverer  sleeps  upon  his  exclusive  rights,  he  lose 
tiiem,  and  the  country  is  then  open  to  all  mankind. 

Mens.  Vattel,  we  acknowledge,  has  not  expressly  said  that  such  are  the 
oonsequences ;  but  we  ctmtend  that  those  conseqnencef  are  plainly  involved 
in  what  he  has  said— for  he  statea  in  the  passage  above  cited,  that  when  the 
required  oetemonies  have  been  used,  the  title  so  acquired  '  has  been  com- 
monly respected,  provided  it  has  been  afterwards  followed  by  •  real  pea- 
aeasion ;'  and  agab,  in  the  same  passage,  he  observes  in  substance,  a  litde 
further  on,  that  'the  law  of  nations  only  acknowledges  the  rights]of  an  origi- 
nal discoverer  to  uninhabited  countries  of  which  they  shall  really  and  in 
hct  take  possession,  in  which  they  shall  form  settlements,  or  of  which  they 
shall  make  actual  use.'  The  necessary  consequence  is,  that  if  the  original 
discoverer  neglecta  to  take  actual  posseaion  and  commence  the  setdement 
of  the  country,  or  commence  nnng  it  in  some  way,  within  a  reasonable  f|* 
riod  of  time,  which  must  of  course  be  greater  or  less,  according  to  the  cir- 
onnutanoes  of  each  case,  the  country  will  ftll-to  the  first  occupant,  let  him 
be  who  he  may.  We  shall  here  add,  that,  in  our  judgmnfiti.  if  such  first  oc- 
cupant, when  he  first  enters  the  country,  cluma  the  w^Ie  of  it,  and  if  hir 
resources  for  settling  it  are  such  that  in  all  human  pirobabili^  he  will  be 
able  within  a  reasonable  time  to  fill  it  with  a  population  of  reasonable  imuA- 


[  \ 


8 


tff  hit  oldm  oaght  to  b«  rMpcetad.  Bat  if  b*  daiot  n  Mtint  of  oooatiy 
•llogetbor  dkproportioBwl  to  mmIi  naourem,  thon  tho  rwt  of  the  world  li  nut 
boaad  to  roipoot  tooh  claim  bojond  tho  liniti  wfaieh  tbooo  rMoorooo  will 
iUrlf  womnt,  andor  a  liboral  viow  of  tho  aoljoct— and  tho  nat  of  tho 
oonatry  will  bo  opoa  to  ono  or  aMn«  adtaatorera,  aooording  to  its  axtoot  It 
•ooou  oMontial  that  OTory  ooonpant  of  aach  a  ooantry  ihoald  dUtioetly  auko 
known  what  part  ho  intend*  to  oooopj,  which,  in  tho  oaao  of  oolonioo  plant 
od  by  a  aovoreiga  nation,  may  oaaily  bo  done  in  tho  shape  of  public  grauta 
orcbartora,  doty  anthentioatod  and  famiAhed  to  the  ooloniati,  or  by  logiala* 
tiTo  acta,  clothing  thorn  in  either  oaae,  with  tho  neodfal  anthority,  and  do* 
fining  tho  limita  of  their  retpoctivo  Mttlomento,  or  by  public  prookmatiao 
to  the  mmo  effect  In  the  cmo  of  independent  ooloniet  planted  by  indifi* 
dnalt,  if  aach  a  thing  ihoald  bo  attempted,  (la  it  may  be  according  to  tho 
•boTO  reoaoning,  when  an  individual  can  command  the  necoaaary  moana  and 
aecnre  tho  neodfal  protection,)  other  modtta  might  bo  retorted  to ;  bat  wo 
need  not  atop  to  point  them  out  at  preaont  In  troth,  we  mo  no  roaaon  why 
original  ditooverers  proceeding  to  colonixo  a  coantry  ihoald  not  be  hold  to 
aome  nioh  reatrietion,  for  no  colony,  aa  Mom.  Vattol  clearly  atatea,  aboold 
bo  allowed  to  graap  at  more  territory  than  it  con  improve,  to  theozoIoaioB 
of  other  adrontorora,  who  might  improve  it.  Wo  have  now  ahown,  aa  wo 
think,  that  the  Moond  and  third  mlea  above  etatod,  are  fairly  dndociblo  fifom 
the  above  remarka  of  Mona.  Valtel,  and  are  porfoctly  reaaonabIe~>and  in> 
deed  not  merely  reatonablo,  bat  indiiponaably  necoaaary  to  a  joit  doeiaion 
<rf  thoao  qaoationa  of  title,  whieh  ganorally  ariao  from  tho  diacovory  of  un* 
inhabited  coontriei. 


f 


NO.  VL.-VmXOMAME'Wmn  COVtfVBRS. 

URiMaAUTm  CouarntM.— The  firat,  among  the  miaoollimeona  topica 
connected  with  thii  aabject,  to  which  wo  alladed  at  the  eloao  of  the  procod* 
iog  tract,  ia  the  qaestion,  how  far  an  original  diacoverer  of  an  nninhabited 
coantry  ia  bound  to  proaecote  hia  diacovery,  before  he  haa  a  right  to  conaid* 
or  thatparticnlar  field  of  diacovery  aa  doaed  againat  all  fatare  advent  oron* 
Or  in  other  worda,  how  far  he  ia  bonnd  to  explore  aach  coantry— -either  ita 
ontlinea,  or  ita  interior  or  both— before  he  can  inaiat  that  tho  aaboequont  ez- 
plorationa  of  other  adventarera  are  to  rankaa  aecondary,  and  not  aa  original 
diacoveriea,  and  that  they  cannot  bo  made  the  foondation  of  aeparato  and 
dialinot  daima  oil  the  part  of  aach  other  adventarera,  to  thoao  porta  of  the 
coantry  which  they  may  have  aeverally  ezploredf  To  this  we  answer,  that  ho 
certainly  ia  not  bonnd  to  afall  and  complete  explontbn  of  .the  coantry— ei* 


ther  of  iu  oaUinea  or  iU  interior— or  eten  of  th«t  particular  outline  which 
wu  the  immediite  lubject  of  hie  diaooTerj.     For  if  that  were  »*>,  then  everj 
original  diacoverer,  whaterer  might  be  the  merita  and  value  of  bit  dis« 
oovery,  would  be  liable  to  be  immediately  deprved,  to  a  great  extent,  if  not  ^ 
altogether,  of  thn  fair  reward  of  hit  toil  and  peril*,  by  the  first  adventurer  > 
who  might  be  emboldened  by  hit  tuocett,  and  enabled  by  the  knowledge 
by  him  communicated  to  the  world,  to  follow  him  in  the  tame  path  of  dia* 
covery,  and  to  get  beyond  him  in  the  extent,  minuteness,  and  accuracy  ol 
hit  researches.      To  allow  thit  would  be  to  discourage  enterprise  in  this 
line,  rather  than  to  encourage  it.      The  tendency  of  such  a  principle  would 
be  to  defeat  the  rule  which  assigns  to  discoverers  the  fruits  of  their  discov- 
eries, and  to  make  all  newly  discovered  uninhabited  countries  the  subject  of 
a  general  scramble  among  mankind.   And  though  it  may  be  difiicult  to  lay 
down  any  general  rule,  by  which  secondary  discoveries  con  be  always  dis- 
tingiiiithed  from  the  original  discoveries,  yet  there  ought  to  be,  and  no  doubt 
there  is,  a  distinction  between  them. 

If  the  original  discoverer  does  enough  to  establish  fully  the  existence  ot  a 
country  previously  unknown — to  bring  mankind  fairly  acquainted  with  its 
principal,  or  most  accessible  outline,  he  has  done  enough,  we  think,  to  enti* 
tie  him  to  the  reward  which  the  law  of  nations  holds  out  to  him.  He  hat 
justly  earned  an  exclusive  right  to  the  whole  country,  or  so  much  of  it  at  he 
is  able  to  occupy ,  or  is  likely  to  want  within  a  reatonable  time,  to  be  liber- 
ally  measured.  If,  however,  the  extent  of  the  country  is  such,  that  he  ev- 
idently cannot  occupy  it  wholly,  other  adventurers  will  do  him  no  injustice 
by  occupying  such  parts  at  he  cannot  occupy.  But  a  claim  to  a  portion  of 
the  country  by  other  adventurert  on  this  ground,  is  a  very  different  thing 
from  claiming  such  portions  on  the  ground  of  original  discovery,  when,  in 
fact  such  discovery  is  merely  secondary  iu  point  of  time,  at  well  at  iu  im- 
portance—when it  it  nothing  more  than  a  mure  full  and  accurate  explor- 
ation of  regiont,  a  general  knowledge  of  which  has  been  previously  acquired 
and  published  by  another.  II  the  information  obtained  and  published  by 
the  original  discoverer  it  tufficient  to  render  feaaible  a  project  for  beginning 
totettle  the  ditcovered  country,  that,  we  think,  is  enough,  in  general,  to  re- 
dace  all  tubsequent  discoveries  in  the  tame  field,  to  a  tecondary  rank,  and 
preclude  all  future  olaima  to  the  country  or  any  part  of  it,  on  the  ground  of 
ditcovery  alone. 

Another  quettion  connected  with  thit  tubject  it,  whether  the  discovery 
of  an  uninhabited  country  by  a  mere  private  individual  can  in  any  case  in- 
ure to  the  benefit  of  the  nation  to  which  it  belongs  T  We  think  it  cannot, 
•zcept  with  hia  content.     If  he  taket  potietaioa  in  the  name  of  hit  nation, 


#■ 


10 


% 


■i 


I 


m  i 


it 

i 


and  the  nation  in  dae  time  lignifiet  her  approbaUon  of  the  act,  that  nndoabt> 
edij  will  vest  in  the  nation  the  rights  which  the  difcovery  vetted  in  hinuelf. 
There  can  be  no  reaaonable  objection  to  tbit  mode  of  tranaferring  his  rights, 
any  more  than  to  a  formal  auignment  Bat  tuppoie  he  take*  poHenion  in 
hit  own  name,  and  prooeeda  to  plant  an  independent  colony ;  can  his  coontry 
Jmtly  claim  the  soil  and  sovereignty  of  the  ground  ocoopied  by  that  col> 
onyt  In  oar  opinion,  she  cannot  We  know  of  no  rule  of  the  law  of  na- 
tioDs  which  forbids  individuals  to  establish  independent  governments,  if  they 
can,  in  ceantries  to  which  no  existing  government  has  any  right.  Saoh  a 
rale  would  conflict  directly  with  the  rule  above  laid  down,  viz.  that  when 
•uch  a  country  is  discovered  by  a  private  adventurer,  he  is  entitled  to  the 
fruits  of  hu  discovery — it  would  be  at  variance  with  the  policy  of  that  rule, 
which  is  to  encourage  private  enterprise  in  this  line  of  discovery.  But  sap  • 
pose  that  an  individual  claims  the  fruits  of  his  discovery,  and  yet  does  no- 
thing  to  realise  them — that  he  neither  proceeds  to  colonize  the  country  him- 
aeir,  nor  disposes  of  his  lights  to  another — will  that  right  devolve  upon  bis 
country  T  To  this  we  answer,  no.  Such  a  mode  of  dealing  with  his  right, 
is  an  abandonment  of  that  right  to  all  mankind — or  in  other  words,  a  waiver 
of  it  in  favour  of  the  first  occupant.  There  is  no  rule  of  national  law,  which 
in  such  a  case,  assigns  the  right  especially  to  his  own  country. 

There  is  no  need  of  such  a  rule— it  could  do  no  good — it  could  not  tend 
to  promote  the  discovery  and  settlement  of  unknown  regions,  which  is  the 
object  of  all  rules  on  the  subject.  A  newly  discovered  couatry  is  as  likely 
to  be  settled,  when  the  right  to  settle  it  is  vested  in  all  mankind, — when  it 
belongs  to  the  first  occupant, — as  when  it  is  vested  in  a  particular  nation 
and  more  so. 

It  is  obvious  that  these  remarks  are  equally  applicable  to  the  cose  oi  a 
private  adventurer,  who,  afler  having  discovered  an  uninhabited  country, 
makes  no  claim  to  it  at  all.  This  also  is  a  waiver  of  bis  rights  in  favor  of 
the  first  occupant. 

In  strictness,  the  remarks  here  submitted  on  the  present  topic,  are  all  no 
donbt  implied  in  tiie  general  rule  above  laid  down,  viz.  that  ittdividual  di*- 
ooverers  are  entided  to  the  fruits  of  their  discoveries.  But  we  have  thought 
U  necessary  to  state  our  views  on  the  subject  explicitly  and  at  large,  ud 
leave  nothing  to  inference,  even  although  it  may  Involve  repetition. 

Another  fitting  topic  ot  remark  under  the  present  head  of  ot^r  subject  is  ttie 
qaestion.  whether  a  nation  proceeding  to  occupy  an  uninhabited  ooanlry, 
either  on  the  groond  of  discovery,  or  on  the  ground  that  the  discoverer  baa 
waived  hia  rights  by  neglect,  can  content  beraelf  with  a  mere  military  ueeo* 
patioD  of  the  ooantry  without  attempting  to  convert  it  to  the  purpoaea  «f 


n 


Bgricaltare  or  commerce  ?— whether  if  the  does  ao,  thit  it  not  to  be  coniid 
ered  as  an  abate  and  perrernon  of  her  righia— -aa  eqaivalent  *->  a  neglect  to 
use  fhem,  which  entitles  other  nations  to  dispossess  her  7  Withoat  doabt, 
the  end  aimed  at  bj  the  law  of  nations  in  assigning  the  soil  and  sovereign^ 
of  such  countries  to  the  fittt  discoverer,  or  the  first  occupant,  as  the  case 
muj  be,  is  the  settlement  of  the  country  by  a  miscellaneous  population,  and 
the  deTelopement  of  its  agricultural  and  commercial  resources,  for  the  good 
of  the  world  at  lUrge.  But  even  a  military  occupation,  which  consists,  of 
course,  in  the  establishment  of  military  posts  in  different  parts  of  the  coun- 
try, has  a  manifest  tendency  to  the  ultimate  formation  of  agricultural  and 
commercial  settlements,  since  military  posts  naturally  draw  such  settle- 
ments around  them.  In  many  cases  indeed,  this  is  the  best,  and  perhaps  the 
only  way,  of  beginning  the  settlement  of  such  countries ;  for  it  is  seldom 
that  countries  newly  discovered  are  found  to  be  entirely  without  inhabi- 
tants. They  have  generally  a  thin  population  of  savages,  withont  any  set- 
tled habitation — without  agriculture,  commerce,  or  arts — and  when  so 
peopled,  they  are,  not  without  reason,  regarded  by  the  law  of  nations,  for 
all  practical  purposes,  as  uninhabited.  Military  posts  are  essential  to  the 
defence  of  settlers  against  such  a  population ;  and  how  far  they  are  necessa 
ry,  and  how  long  anch  a  system  requires  to  be  kept  up,  every  nation,  under- 
taking to  colonize  a  new  country,  mutt  of  necessity  be  left  to  judge  for  it- 
self. The  evils  resulting  from  any  interference  of  other  nations  in  matters 
of  this  sort,  would  greatly  outweigh  all  other  considerations.  The  same  ob- 
servations will  apply  to  the  occupation  of  such  a  country  by  the  establish- 
ment of  posts  for  the  mere  purpose  of  trading  with  the  savages  already  all 
luded  to,  or  for  other  similar  purposes.  They  have  a  tendency  to  fill  uj  the 
country  by  degrees,  though  not  as  rapidly  as  settlements  formed  for  the  ex^ 
press  purposes  of  agriculture.  But  this  difference  will  not  warrant  the  in- 
terference of  other  nations.' 

A  suggestion  has  been  recently  made  that  a  nation  may  acquire  an  ex- 
dosive  title,  as  against  some  particular  nation,  which  is  not  exclusive  against 
some  other  nation.  We  do  not  perceive  how  this  can  be,  except  in  a  case 
where  one  of  the  two  nations  has  been  notified  of  the  discovery  and  the 
title  daimci  aaddr  it,  and  the  other  not.  For  supposing  all  nations  to  be 
alike  aware  of  both,  a  disoovery  cannot  be  an  original  discovery  as  to  one 
nation,  and  not  as  to  another.  If  original  at  all,  it  is  original  as  to  all  the 
world.  , 

The  next  head  of  our  sabject  vrill  be  the  Nootka  Convention. 


m 


XT', 

i' 
\ 


f 


i-    f 


IS 


NO.  III.-NOOTKA  CONTBIYTIOIV. 

Thi  Nootx  a  Cokventio  n  . — According  to  the  principles  laid  down  by  Mr. 
Vattel,  whatever  exclasive  title  Spain  bad  aoqaired  to  the  North  Weat  coaat 
by  her  diacoveries  in  that  qaarter  before  the  date  of  thia  convention,  it  clear- 
ly appears  to  us  that  she  had  waived  auch  title  by  her  neglect  of  the  coon- 
try  long  before  the  convention  was  signed.  She  had  known  the  coantry 
long  enough  and  well  enough  to  have  ventured  upon  the  eatablishment  of  a 
colony  or  colonies  upon  aome  part  or  parts  of  the  coast.  As  far  as  it  depend- 
ed upon  the  mere  knowledge  of  the  coast  she  might  have  established  colo- 
nies along  its  whole  line,  from  the  42d  to  the  58th  parallel  of  North  latitade, 
as  far  back  as  1650.  But  in  1789,  when  she  expelled  Meares  from  his  set- 
tlement at  Nootka  Sound,  she  had  not  formed  a  single  settlement  on  any  part 
of  the  coast — she  had  not  occupied  a  foot  of  the  country  in  any  way.  If 
this  was  not  a  waiver  of  her  rights  on  the  ground  of  discovery,  nothing 
could  be.  It  c  ertainly  was  so ;  and  it  left  the  country  open  to  all  mankind 
— not  indeed,  wo  think,  for  the  purposes  of  discovery,  but  for  the  purpoaes 
of  colonization.  Her  discoveries  had  been  of  such  a  character,  and  were 
■0  well  known,  that  although  there  was  yet  much  left  to  explore,  there  was 
nothing  left  for  original  discovery ;  no  discovery  made  in  that  quarter  after 
the  voyage  of  Fonte,  could  have  any  thing  more  than  a  secondary  character 
Even  the  discoveries  of  Cook  below  the  latitude  of  58°,  important  and 
valnable  as  they  undoubtedly  were — unsurpassed  and  nnsprpassable  in  mi- 
nuteness and  accuracy,  in  extent  and  interest — belonged  to  this  class,  for  the 
simple,  but  all-sufficient  reason,  that  other  navigators  had  preceded,  and 
traced  the  line  of  coast  long  before  him.  We  think  we  should  hazard  no- 
thing in  affirming  that  Spain  knew  as  much  of  that  coast  in  1650,  as  Europe, 
in  genera],  knew  of  the  cousl  which  we  now  occupy  in  1600.  Why  then  did 
the  not  attempt  to  people  it  f  Simply  because  she  did  not  think  it  worth 
the  trouble— because  she  had  enough  of  more  inviting  territory  to  colonize* 
She  therefore  thought  proper  to  neglect  it ;  this  was  to  abandon  it  to  thA 
first  oconpant — to  waive  her  right  to  it  in  favour  of  all  mankind — and  her 
persisting  to  clawi  it,  in  spite  of  this  waiter,  whether  on  the  ground  of  ori- 
ginal discovery  or  on  the  ground  of  papal  decrees,  was  a  vain  pretence, 

This  pretence,  she  was  compelled  to  yield  in  the  case  of  Meares.  The  de- 
mand of  satisfaction  made  upon  her  by  England,  for  the  injury  done  to 
Meares,  was  an  implied,  but  unequivocal  denial  of  her  exclusive  title— it  was 
an  implied,  bat  clear  affirmation  that  Spain  stood  in  regard  to  this  country 
upon  the  same  footing  with  all  the  other  nations  of  the  earth— that  she  had 
a  right  in  common  with  them,  to  occupy  at  any  time,  such  parts  of  the  coan- 
try as  might  not  at  sach  time  be  already  occupied,  and  nothing  further.  By 


13 

agreeing  to  make  the  satisfaction,  «he  acquiesced  in  this  denial.  She  admit* 
ted  this  affirmation.  She  made  the  satisfaction — bat  she  did  not  in  fact  re- 
store the  settlement  of  Meares,  although  that  was  a  part  of  the  agreement 
•—why  she  did  not  restore  it,  does  not  appear.  But  whether  she  ever  made 
the  satisfaction  or  not,  and  whether  she  ever  restored  the  settlement  or  not,'' 
is  of  no  consequence  whatever;  it  is  enough  that  she  agreed  to  do  so.  This 
agreement  was  a  solemn,  deliberate  admission,  publicly  made  in  the  face  of 
the  whole  earth,  that  she  had  no  exclusive  claim  to  any  part  of  that  country. 
And  that  admission  was  irrevocable— once  made,  nothing  could  destroy  its 
effect— nothing  could  alter  it  one  jot  or  tittle,  but  the  genered  consent  of  all 
the  world.  England  could  not  release  her  from  it ;  for  it  was  an  admission 
in  favour  of  all  mankind — all  mankind  bad  a  right  to  insist  on  it.  It  is  in  vain 
to  contend  that  this  convention  was  canceled  by  the  war,  which  occurred  be»:{ 
tween  England  and  Spain  in  1796.  The  war  did  not  effect  this  admission, 
even  as  regarded  England — itcould  not.  That  a  war  cancels  all  previous 
treaties  between  the  belligerent  nations,  is  a  general  rule  which  we  do  not 
deny,  if  nothing  more  is  meant  by  the  rule,  than  merely  that  it  cancels  all  un- 
executed promises  contained  in  those  treaties.  But  if  it  is  meant  to  be  as- 
serted, that  a  war  cancels  any  admission  either  of  facts,  or  of  principles  of 
national  law,  which  those  treaties  contain,  then  we  do  deny  the  rule  in  the 
most  positive  terms.  That  effect  it  cannot  have,  unless  it  can  have  the  effect 
of  recalling  the  past,  or  of  obliterating  it  from  the  memory  of  mankind. — 
And  even  such  unexecuted  promises,  when  they  involve  admission  of  facts 
or  principles,  are  not  wholly  cancelled  by  war.  Whatever  remains  of  the 
promise  to  be  performed  is  discharged,  but  the  admission  involved  in  it 
stands  untouched.  The  promise  in  this  case  to  make  satisfaction  for  the  in- 
jury done  to  Meares,  involved  a  double  admission.  It  admiffted  a  fact,  and 
it  admitted  a  principle.  The  fact  admitted  was  that  Spain  had  neglected  the 
country — the  principle  admitted  was,  that  ihii*  neglect  was  by  the  law  of  na- 
tions  a  waiver  of  her  exclusive  right  to  the  country.  To  say  that  the  war 
canceled  these  admissions  is  a  sheer  absurdity.  It  is  as  much  as  to  say  that 
the  occurrence  of  a  war  between  nations  prevents  any  one  from  ever  after- 
wards appealing  to  any  p/evious  treaty  as  proof  of  any  fact  whatever,although 
acknowledged  therein  in  the  clearest  terms.  It  is  to  say  that  all  such  trea- 
ties by  the  occurrence  of  war  cease,  ipto  facto,  to  be  legal  evidence  for  eve- 
ry purpose,  either  between  nations  or  between  individuals ;  that  courts  of 
justice  cannot  receive  them,  even  to  show  that  they  ever  had  any  existence. 
But  every  one  knows  that  this  cannot  be  so. 

This  very  provision  in  the  case  of  Meares  suggests  a  most  striking  ill  us- 
tration  of  the  effect  of  war  on  treaties;  for  il  Spain  had  not  already  pftid 
Meares  bis  indemnity  when  the  war  occurred  in  1796,  that  occurrence  would 
2 


« 


prt 
ib  - 


u 


I 


bavo  canceled  the  obligation  to  pay  him ;  but  yet  the  fact  impliedly  admitted 
by  the  engagement  to  pay  him,  would  atill  have  stood  as  an  admitted  fact, 
and  all  the  world  would  then,  as  well  as  now,  have  had  a  right  to  urge  it 
against  Spain  as  unanswerable  proof  of  this  fact  oat  of  her  own  mouth.  And 
just  BO  of  the  principle  of  international  law  involved  in  the  engagement — the 
whole  world  then,  as  well  as  now,  would  have  had  a  right  to  insist  that  she 
was  estopped  from  ever  after  controverting  that  principle. 

The  distincdouis  perfectly  plain — nothing  can  be  plainer — and  it  is  strange 
— '  'tis  passing  strange ' — that  Presidents  and  Secretaries  of  State,  and  Mem* 
bers  of  Congress  and  State  Governors,  and  they  lawyers  too,  have  been  nn- 
able  to  perceive  it;  or  if  they  have  perceived  it,  that  they  have  not  had  the 
candor  to  acknowledge  it.  Had  it  been  a  distinction  in  their  own  favour 
they  would  not,  we  think,  have  been  slow  to  discern  it,  or  slack  to  urge  it. 

But  this  double  admission  of  Spain— first  of  the  iactthat  she  had  neglect* 
ed  this  country,  and  next  of  the  legal  consequence  of  the  fact,  viz.,  that  she 
bad  thereby  waived  her  exclusive  right  to  it,  whatever  this  right  might  have 
been,  and  that  the  country  was  then  open  to  all  mankind,  as  if  once  were  not 
solemn  enough,  is  contained  twice  in  this  very  convention  :  or  by  the  third 
article,  it  was  agreed  that  the  respective  subjects  of  the  two  powers  should 
not  be  disturbed  or  molested  in  landing  on  the  North  West  Coast  in  parts 
not  already  occupied,  either  for  the  purpose  of  trading  with  the  natives  or 
of  making  setllemenla  there.  This  was  an  admission  on  the  part  of  Spain, 
that  England  hod  as  good  a  right  to  form  settlements  in  that  country  as  she 
bad  hetself.  And  upon  what  ground  7  Not  of  original  discovery  certainly 
—for  England  was  not  in  fact  the  original  discoverer,  and  her  statesmen  did 
not  contend  tor  that.  Had  there  been  any  chance  of  success  in  taking  that 
ground,  they  would  have  taken  it — they  would  have  claimed  for  England  an 
exclusive  right  to  the  whole  country,  or,  at  least,  some  specific  portion  of  it. 
They  would  never  have  consented  to  admit  that  Spain  had  any  equal  right 
with  England  to  a  foot  of  country  which  England  could  possibly  cover  with 
an  exclusive  claim.  On  what  ground  then,  we  again  ask,  did  Spain  make 
the  admission  7 

There  was  no  ground  for  it  except  the  ground  which  we  have  pointed 
out,  viz.,  that  Spain  had  neglected  the  country — had  thereby  waived  her 
exclusive  right  to  it,  and  thrown  it  open  to  all  the  world. 

It  has  been  argued  by  one  of  our  Secretaries  of  State,  that  by  the  term 
'  settlements'  used  in  the  third  article  of  this  convention,  nothing  more  is 
meant  than  temporary  settlements  for  the  purpose  of  trading  with  the  na> 
tives  ;  not  permanent  colonies.  But  this  we  do  not  scruple  to  say  is  a  mis- 
erably weak  suggestion,  uVerly  groundless,  utterly  destitute  of  the  least 
shadow  of  plausibility.    In  commenting  on  that  term,  aa  it  occurs  in  this 


mpliedly  admitted 
an  admitted  fact, 
a  right  to  urge  it 
:  owD  moatb.  And 
I  engagement— the 
It  to  insist  that  she 

5. 

ir — and  it  is  strange 
of  State,  and  Mem* 
too,  have  been  an- 
y  have  not  had  the 
their  own  favonr 
ir  slaclK  to  urge  it. 
at  she  had  neglect* 
I  fact,  viz.,  that  she 
ia  right  might  have 
as  ii'oDce  were  not 
}n :  or  by  the  third 
two  powers  should 
^est  Coast  in  parts 
vith  the  natives  or 
n  the  part  of  Spain, 
that  country  as  she 
discovery  certainly 
d  her  statesmen  did 
iccessin  taking  that 
med  for  England  an 
pacific  portion  of  it. 
bad  any  equal  right 
possibly  cover  with 
isk,  did  Spain  make 

1  we  have  pointed 
;hereby  waived  her 

:e,  that  by  the  term 
in,  nothing  more  is 
fading  with  the  na- 
iple  to  say  is  a  mis- 
[tistitute  of  the  least 
08  it  occurs  in  this 


16 

Article,  he  puts  the  question,  '  What  kind  of  settlements?'  The  answer  it 
plain  enough.  It  means,  of  coarse,  any  kind  of  settlements ;  for  the  term 
is  used  without  any  restriction,  qaalifioation,  or  modification  whatever,  and 
according  to  all  known  rules  of  interpretation,  it  must  be  understoood  in  a 
generic  and  not  in  any  specific  sense.  The  grammatical  construction  of  the 
sentence  clearly  requires  this.  '  What  kind  of  settlements  V  There  is  no 
need  of  asking  any  such  question — there  is  no  need  of  answering  it;  or  if 
it  must  be  answered,  we  answer  it  by  referring  the  interrogator  to  his  gram> 
mar — to  his  books  of  rhetoric,  of  logic  and  of  law ;  and  if  he  cannot  learn 
from  these  what  '^kind  of  settlements'  was  meant,  let  him  burn  them. — 
They  can  do  him  no  good— he  can  learn  nothing.  To  say  that  the  word  set- 
tlements, used  in  this  article,  does  not  mean  settlements  of  any  kind — set- 
tlements in  general,  for  any  and  all  purposes — permanent  settlements  aa 
well  as  temporary  settlements — colonies  if  you  please,  is  to  do  violence  to  lan- 
guage. It  is  to  wrest  words,  to  pervert  them  from  their  plain,  obvious 
meaning ;  and  to  carry  this  construction  out  into  practice,  would  be  to  evade 
the  treaty  by  a  wretched  quibble — to  break  it  by  a  miserable  piece  of  so 
phistry.  In  truth,  the  whole  argument  of  the  learned  Secretary  on  the 
construction  of  this  convention,  is  evasive  and  sophistical  throughout,  and 
its  evasions  and  its  sophistry  are  mingled  with  assumptions  palpably  false. 

The  learned  Secretary  has  represented  that  the  '  trading  with  the  natives' 
spoken  of  in  this  article  of  the  ti^eaty  was  to  be  the  purpose  of  the  settle- 
ments. This  is  not  so — the  '  trading'  as  will  clearly  appear  from  a  gram- 
matical analysis  ot  the  sentence  was  to  be  one  of  the  purposes  of  the  '  land- 
ing'— the  formation  of  '  settlements'  was  to  be  another — and  other  and  fur- 
ther purposes  there  conld  not  be  ;  or  these,  at  least,  include  all  others 
which  can  possibly  be  imagined. 

The  Secretary  contends,  in  substance,  that  Spain  dould  never  have  in- 
tended by  this  article  to  relinquish  'the  ultimate  sovereignty  of  the  coaa« 
try  which  she  had  claimed  for  near  three  hundred  years.'  He  says,  the 
treaty '  contains  no  provision'  for  this.  Here  is  an  assumption  that  she  had 
the  sovereignty,  and  that  England  acknowledged  her  sovereignty.  Bui  that 
is  begging  the  question.  The  denial  of  her  sovereignty  by  England  was 
the  very  occasion  of  the  convention, — it  was  the  cause  of  the  dispute. — 
The  convention  '  contains  no  provision*  indeed?  There  needed  none ;  lor 
England  contended  that  Spain  had  no  sovereignty  to  yield,  and  all  she  want 
ed  was  that  Spain  should  admit  this — directly  or  indirectly — impliedly  or 
expressly — no  matter  how.  The  simple  admission,  in  whatever  words  con- 
veyed was  enough :  and  words  appear  to  have  been  carefully  chosen  for  the 
purpose,  as  well  with  the  view  to  spare  as  much  as  possible  the  pride  of 


.^ 


16 


h 


^ 


8paiD,as  to  the  efficient  conveyance  of  that  admission.  She  was  reqaired 
to  retract  the  claims  to  thut  country  of  which  she  had  boasted  herself  for 
'  three  hundred  years,'  and  for  an  alleged  infraction  of  which  she  had  lately 
rebuked  Russia.  This  she  was  glad  enough  to  do— tor  she  was  conscious 
that  her  claim  could  not  bear  to  be  tested  by  the  law  of  nations — she  was 
conscious  of  th<i  weakness  of  her  title — of  her  own  weakness,  and  of  the 
power  and  resolute  determination  of  her  adversary.  She  saw  that  the  time 
had  come,  when  she  must  necessarily  '  back  out'  from  her  *  three  hundred 
year's'  claim,  and  England  was  willing  she  should  do  so  without  requiring 
her  publicly  to  eat  up  before  the  whole  world,  with  a  sword  at  her  throat, 
all  her  boastful  talk  for  '  three  hundred  years'  previous.  The  Secretary  re- 
fers to  this  claim  as  never  having  been  seriously  questioned  by  any  Europe- 
an nation ;  but  he  sites  no  instance  of  any  direct  or  implied  acquiescence, 
except  in  the  case  of  Russia;  and  that  was  no  practical  acquiescence  at  all, 
Spain  made  a  complaint  to  Russia  that  Russian  subjects  had  violated  the  ter* 
ritory  of  Spain  on  the  N.  \^.  Coast  below  the  parallel  of  Gl°.  The  reply 
of  Russia  was  evasive,  even  according  to  the  Secretary's  own  version  of  it, 
which,  we  suspect,  would  not  be  warranted  by  the  origiaal  diplomatic  letter 
in  which  it  was  conveyed,  though  we  have  no  copv  of  that  letter  at  baud  to 
refer  to.  She  said  in  substance,  as  the  Secretary  has  it,  that  she  '  was  uz* 
tremely  sorry  that  the  repeated  orders,  issued  to  prevent  the  subjects  of  Rub« 
sia  from  violating,  in  the  smallest  degree,  the  territory  belonging  to  another 
power,  should  have  been  disobeyed  :'  nevertheless  her  subjects  did  contin- 
ue to  claim  and  to  use  the  country  below  the  latitude  of  61°  and  Russia  now 
holds  it.  The  affair  of  Nootka  Sound  was  then,  we  think,  on  foot,  and  Rus« 
sia  knew  well  enough  how  it  would  end,  whatever  she  might  say  in  her  de- 
spatch on  that  occasion.  But  be  this  as  it  may — certain  it  is  that  this  oc- 
currence took  place  before  Oct.  1790  when  the  Nootka  convention  was 
signed,  which  cut  up  the  exclusive  pretensions  of  Spain  to  that  coast,  root 
and  branch,  forever,  and  gave  ihem  to  be  numbered  among  the  things  that 
were  past.  ' 

Let  us  suppose  however  that  Spain  really  had  an  exclusive  right  to  the 
H.  \V.  Coast,  when  she  expelled  Mearos— ihen  the  legal  etfect  of  the  clause, 
in  the  Nootka  convention,  viz.  the  third  article,  which  «illows  both  the  con- 
tracting parties  to  make  settlements  in  that  country,  was  to  transfer  to  Eng- 
land a  portion  of  that  exclusive  right.  It  made  her  a  part  owner  of  the 
country — not  of  any  specific  part  indeed — nor  of  an  undivided  share  -it 
did  notconstituteherexactly  a  joint  tenant  or  tenant  in  common  with  Spain ; 
but  it  Tested  in  her  the  fee  simple  of  the  soil  and  the  sovereignty  of  such 
vacant  parts  of  the  country,  as  she  or  her  subjects  might,  from  time  to  time, 


17 


he  was  reqaired 
>asted  herself  for 
ich  she  bad  lately 
le  was  conscious 
nations — she  was 
ikness.  and  of  (he 
saw  that  the  time 
r  ' three  hundred 
without  requiring 
^ord  at  her  throat, 
The  Secretary  re- 
el by  any  Europe- 
led  acquiescence, 
;quiesceuce  at  all, 
id  violated  the  ter- 
f610.     The  reply 
)wn  version  of  it, 
\\  diplomatic  letter 
It  letter  at  baud  to 
that  she  'was  ox* 
le  subjects  of  Bus- 
onging  to  another 
ibjects  did  contia* 
1°  and  Russia  now 
on  foot,  and  Rus> 
ght  say  in  her  de« 
it  is  that  this  oc- 
convention  was 
that  coast,  root 
>g  the  things  that 


select  and  occupy.  It  was,  in  effect,  a  cession  of  territorial  rights.  Thit 
it  appears  to  us,  most  clearly  would  have  been  the  case  ftpon  the  snpposi* 
tion  just  made,  and  if  we  are  correct  in  this  view,  the  war  of  1796  could 
not  have  any  effect  on  the  clause. 

It  is  not  necessary  however  to  contend  for  this  view  of  the  subject ;  for 
the  ground,  taken  by  England  undoubtedly  was,  that .  Spain  had  no  exclu- 
sive right  to  any  part  of  the  country— the  third  article  as  well  as  the  first 
and  second  articles  (providing  for  compensation  to  Meares)  is  a  clear  and 
unequivocal  admissiou  of  this  ground  by  Spain,  and  that  admission  the 
war  certainly-  could  not  effect,  as  we  have  already  shown. 

The  Secretary  could  not  see  the  convention  iu  this  light,  and  it  was  not 
the  business  of  England,  with  her  views  upon  that  country,  to  tell  him  and 
in  telling  him,  to  tell  all  the  world,  in  plain,  set  terms,  that  she  regarded 
that  country  as  open;  at  the  date  of  the  Nootka  convention,  to  all  mankind  ; 
for  this  might  have  suggested  the  question  whether  it  is  not  so  yet,  and  such 
a  suggestion,  it  is  perhaps  her  policy  to  avoid  as  long  as  she  can.  Instead, 
therefore,  of  answering  the  Secretary  by  plainly  declaring  what,  in  her 
view,  are  the  specific  principles  of  that  convention,  she  has  contented  her- 
self with  referring  to  them  in  general  terms,  as  cuttingoff  all  questions  con- 
cerning the  original  discovery  of  the  country,  and  leaving  the  Secretary  to 
infer  in  what  way ;— hoping,  no  doubt,  that  our  government  would  not  on- 
ly perceive  her  meaning,  but  be  prudent  enough  to  say  nothing  publicly 
about  the  matter.  Indeed  it  seems  quite  probable  that  this  policy  in  part 
dictated  the  language  of  that  convention,  and  excluded  from  it  an  express 
acknowledgement  on  the  part  of  Spaiu  that  she  had  long  before  waived  her 
exclus^e  right  to  the  Njrth  West  Coast.  It  was  not  the  intention  of  ei- 
ther party  to  say  too  plainly  that  all  the  world  had  as  good  a  right  there  as 
herself. 

We  shall  resume  and  conclude  this  branch  of  our  subject  in  the  next 
number. 


sive  right  to  the 
ect  of  the  clause, 
ws  both  the  con- 
transfer  to  Eng- 
rt  owner  of  the 
ivided  share  -it 
imon  with  Spain ; 
ereignty  of  such 
om  time  to  time, 


nrO-  IF.— FAI<IiACEBS  OF  TOB  SEOBBTABIT  OF  8TATB. 

The  failure  of  the  Secretary  to  see  the  Nootka  Convention  in  its  true 
light,  is  a  mistake  which  runs  through  all  his  arguments  in  regard  to  that 
iustrument.  It  must  be  long,  apparently,  since  be  refreshed  his  memory 
in  relation  to  that  branch  of  public  law.,  to  which  this  subject  belongs. 
Hence  he  enters  upon  this  portion  of  his  argument  with  the  most  unsuspect- 
ing confidence  iu  the  thorough  soundness  and  sufficiency  of  the  exclosire 

claim  of  Spain  to  the  N.  W.  Coast,  down  to  the  date  of  this  convention ;  he 
2» 


I' 


!l 


18 

takes  it  for  granted  that  every  body  views  the  subject  exactly  as  he  does ; 
he  assumes  this  a^the  basis  of  all  his  reasouing,  and  interpreU  the  conven- 
tion accordingly.  From  his  earnestness  of  manner,  we  cannot  doubt  his 
since 'Uy  while  we  smile  at  his  simplicity.  It  is  this  mistake  which  has  be- 
tray d  him,  unawares  we  think,  into  that  evasive  and  sophistical  line  of  ar- 
gument  with  which  we  charge  him.  It  has  led  him  to  trifle  with  the  sub- 
ject before  him.  Thus,  when  he  insisU  on  the  assertion  of  her  title  by 
Spain  for  near  « three  hundred  years,'  what  is  this  but  trifling  1  For  what 
matters  it  how  long  a  bare  assertion  of  title  is  persisted  in,  if  no  possession 
is  taken  under  such  title,  and  no  conflicting  claim  is  made  and  successfully 
resisted  1  Again  he  says,  that  the  title  had  not  been  seriously  questioned 
during  that  period  by  the  nations  of  Europe— and  of  what  importance  is  this, 
so  long  as  no  occasion  of  calling  it  in  question  was  preitented  7  On  the  very 
first  occasion  that  did  present  itself,  her  title  was  questioned  and  she  gave 
op  her  exclusive  pretensions. 

In  another  place,  he  argues  that  the  convention  could  not  have  been  in- 
tended for  a  permanent  urrangement,  because  of  the  intermingling  of  Span- 
ish and  English  settlements,  which  it  might  occasion.  But  this  State  of 
things  was  as  likely  to  occur  before  the  convention  as  after  it ,  for  the  country 
was  open  to  all  the  world,  as  we  have  shown,  and  all  the  world  might  have 
formed  settlements  in  it— and  what  kind  of  intermingling  wonld  that  have 
been  7  The  law  of  nations  had  placed  the  country  in  the  condition  of  a 
common  estate  of  all  mankind.  The  framers  of  this  convention  found  the 
country  in  this  condition  and  here  they  also  left  it.  Let  the  Secretary  ar- 
gue, if  he  pleases,  that  the  law  of  nations  was  not  meant  to  be  permanent^ 
he  might  as  well  do  the  one  as  the  other.  That  such  a  jumble  of  fettle- 
ments,  though  theoretically  possible,  would  ever  occur  in  practice,  eithet 
under  the  law  of  nations,  or  under  this  convention,  (which,  in  fact,  said  no 
more  than  the  law  of  nations  bad  already  said,)  is  an  extravagant  supposi- 
tion— and  if  in  any  country,  settieraenta  should  once  begin  to  be  formed  in 
this  manner,  the  country  would  soon  be  partitioned,  and  separate  and  dis- 
tinct governments  would  thus  arise.  The  diplomatist  and  statesmen  of  that 
day  were-content  to  leave  all  these  things  to  take  care  of  themselves,  well 
knowing  that  Such  matters  belonged  to  another  generation.  They  had 
enough  to  do  to  settie  the  disputes  of  their  own  time. 

All  aaoh  arguments,  we  repeat  then,  are  mere  trifling,  and  all  appear  to 
have  originated  from  an  entire  aad  most  unaccountable  misconception  of  the 
nature  of  this  convention. 

The  foregoing  reourks  relate  to  his  letter  of  the  I2th  July,  1845 . 

The  other  letter  of  the  30th  August,  1845,  exhibits  the  same  mistake. 


19 


Thus  the  British  Plenipotentiary,  in  a  despatch  dated  20th  Jaly  last,  re* 
marlcs  on  this  convention,  that  '  it  must  be  considered  as  an  acknowledge 
ment  of  certain  existing  rights — an  admission  of  certain  principles  of  inter* 
national  law  not  to  be  revoked  at  the  pleasure  of  either  party,  nor  to  be  set 
aside  by  the  cessation  of  friendly  relations  between  them.'— What  these 
rights  and  principles  are,  he  does  not  explicitly  state — but  no  doubt  he  a]« 
luded  to  the  same  admissions  which,  we  have  contended,  were  involved  in 
the  provisions  of  the  convention.  Why  he  did  not  see  fit  to  specify  those 
principles  and  enlarge  upon  them,  is  a  question  well  deserving  the  most  at* 
tentive  consideration,  but  we  shall  not  now  inquire  into  his  reasons. 

We  have  already  hinted  at  what  we  suppose  them  to  be,  and  may  perhaps 
advert  to  the  subject  again  before  we  conclude  these  tracts.  Our  object,  at 
present,  is  to  notice  the  reply  the  learned  Secretary  makes  to  the  remarks 
above  cited,  which  is,  in  substance,  that  the  convention  contains  no  express 
acknowledgment  of  any  principle  of  international  law.  But  does  not  the 
Secretary  know,  that  any  given  meaning  may  be  conveyed  as  clearly  and 
forcibly  and  with  the  same  binding  effect  by  implication,  as  it  can  by  express 
words  7  And  does  it  fot  argue  a  most  remarkable  obtuseness  of  perception 
on  his  part  that  he  could  not  comprehend  this  brief  allusion  of  the  British 
Plenipotentiary  7  He  remarks  upon  the  convention  that  it  is  'arbitrary  and 
artificial  in  the  highest  degree,  and  is  any  thing  rather  than  the  mere  ac> 
knowledgment  of  simple  and  elementary  principles  consecrated  by  the  law 
of  nations.'  So  perhaps  it  might  appear  to  him,  viewing  it,  as  he  did, 
through  the  medium  of  his  own  preconceived  notion  of  the  exclnsivo  right  of 
Spain  to  the  N.  W.  Coast— the  notion  that  this  treaty  was  meant  to  give  to 
England  an  interest  in  that  quarter  of  the  globe  which  she  had  not  before 
"  and  had  never  claimed  until  then.  But  this  idea  is  a  mere  assumption— it 
begs  the  question  as  already  observed.  To  talk  in  this  way  is  frivolous 
and  even  ridiculous,  especially  in  a  state  paper.  If  these  remarks  should 
perchance  fall  nnder  his  notice,  we  hope  they  may  serve  to  lift  the  veil 
wbioh.seeDU  to  have  obscured  his  vision  in  looking  at  this  convention.  We 
must  indeed  advise  him  to  look  at  it  again.  If  he  can  but  divest  himself  of 
this  notion— if  he  will  bat  admit  into  his  mind  for  a  single  moment^  and  for 
the  sake  of  argument  only,  that  this  convention  was  meant  to  be  a  solemn 
renunciation  on  the  part  of  Spain  of  all  exclusive  pretensions  to  that  country, 
the  hypoUiesis  will  be  immediately  converted  into  a  reality,  and  the  whole 
matter  will  be  perfectly  clear  to  him.  He  will  then  see  that,  by  agreeing 
to  compensate  Meares,  Spain  admitted  him  to  be  no  trespasser — that  thia 
admission  followed  ont  to  its  consequences  involves  the  further  admission, 
that  the  country  was  open  to  all  the  world.    He  will  also  see  that  if  he  had 


IK^^ 


SO 


hi' 


■« 


*t:'    1 


K: 


beeo  hinaseiratraly  wise  man,  a  prpfound  itatesman,  a  Bkilful  diplomatiat, 
and  a  sound  and  sagarious  lawyer,  be  would  have  been  at  no  loss  to  discover 
all  this  in  the  beginning ;  and  finally  he  will  perceive  that  we  should  then 
have  been  spared  the  trouble  of  pointing  out  to  him  a  thing  so  plain. 

The  Secretary  has  mode  several  other  observations,  in  this  dispute  as  well 
as  in  the  first,  very  much  of  the  same  character,  which  we  cannot  now  stop 
to  refute.  To  answer  them  specifically  would  require  a  kind  of  runniog 
commeatary  upon  each  of  his  letters ;  and  for  that  we  have  neither  time 
nor  room,  nor  would  the  public  have  patience  to  peruse  it,  especially  as  in 
executing  such  a  task  we  should  be  obliged  to  quote  every  sentence  he  has 
written.  ^ 

As  long  as  this  article  on  the  Nootka  convention  is,  we  cannot  refrain  from 
adding  something  further  to  what  we  had  already  said,  as  to  the  effect  of 
the  war  of  1796  on  this  convention.  The  very  great  importance  of  this 
point,  we  hope,  will  he  deemed  a  suiBcient  excuse. 

The  provision  made  by  Spain  in  this  instrument,  that  she  would  notdia* 
turb  the  settlements  which  England  might  form  in  unoccupied  parts  of  the 
country,  was  undoubtedly  abrogated  by  the  war.  If  the  convention  had  not 
mentioned  trade  or  commerce  in  any  way,  then  it  could  not  have  been  con- 
tended, as  it  has  been  by  England,  that  the  treaty  of  1314,  by  providing  fur 
the  renewal  of  all  commercial  treaties,  renewed  this  provision.  The  pro- 
mise would  then  have  been  gone — but  the  principle  of  that  promise 
would  have  remained,  viz,  that  the  country  was  by  the  law  of  nations  open 
to  all  the  world,  and  this  admidsion  alone  without  the  promise,  would  have 
been  sufficient  to  protect  such  settlements  from  all  interference  of  Spain. 

The  Secretary,  having  failed  to  perceive  at  all  the  admission  on  the  part 
of  Spain,  which  this  convention  contains,  has  left  that  part  of  the  argument 
of  ids  adversary  which  is  based  on  the  convention,  entirely  unanswered.  In 
troth,  it  is  unanswerable. 

We  have  no  hesitation  in  saying  that  as  a  legal  question,  there  is  no 
manner  of  doubt  that  this  convention  pat  an  end  to  all  exclusive  pretension* 
to  the  N.  W.  Coast  on  the  ground  of  discovery — to  those  of  England,  if  she 
ever  made  any,  as  well  as  those  of  Spain.  It  declared  in  substance  that  by 
the  law  of  nations,  the  country  was  open  to  all  the  world,  or  in  other  words, 
to  the  first  occupant;  and  if  any  man  were  now  to  claim,  under  a  grant  from 
Spain  of  the  date  of  1800  for  example,  lands  in  that  country  which  others 
had  already  occupied,  there  is  no  intelligent  and  impartial  tribunal  on  earth 
that  would  not  decide  against  him.  It  would  be  held  that  under  the  law  of 
nations  such  a  grant  was  void,  independently  of  the  Nootka  convention ;  and 
that  if  the  point  was  subject  to  any  doubt  independently  of  the  convention, 


ful  diplomatilt, 
loss  to  discover 
KB  should  then 

0  plain. 

dispnte  as  well 
annot  now  atop 
lind  of  running 
ire  neither  time 
especially  as  in 
sentence  he  has 

lot  refrain  from 
to  the  effect  of 
portance  of  this 

1  would  not  dia- 
led parts  of  the 
ivention  had  not 
:  have  been  con- 
ty  providing  fur 
ion.  The  pro- 
f  that  promise 
of  nations  open 
ise,  would  have 
ace  of  Spain, 
ion  on  the  part 
if  the  argument 
mans  we  red.  In 

ion,  there  is  no 
live  pretensions 
England,  if  she 
bstance  that  by 
in  other  words, 
er  a  grant  from 
f  which  others 
ibunal  on  earth 
ider  the  law  of 
onvention ;  and 
le  convention, 


91 


the  admission  implied  in  that  iDstmment  on  the  part  of  Spain,  removed  all 
anch  doubt.  That  this  is  the  law  of  the  case,  we  will  undertake  to  main- 
tain against  all  the  Presidents  and  Secretaries  and  all  the  diplomatists  and 
Members  of  Congress,  who  ever  pat  pen  to  paper  or  uttered  a  word  upon 
this  Oregon  Quettion. 

It  does  really  seem  as  if  some  strange  infatuation  had  taken  possession  of 
the  minds  of  oar  public  men  on  this  sabjeot,  that  they  cannot  perceive  or 
will  not  admit  one  of  the  plainest  principles  of  public  law.  They,  in  effect 
require  of  England  that  she  shall  recede  from  ground  which  she  took  and 
■uccessfuUy  mamtained  against  Spain  in  the  affair  of  Meares  ;  ground  aa« 
qaestiimably  correct,  and  to  which  the  United  States  have  since  solemnly 
assented  on  more  than  one  occasion— have  done  it  even  in  the  negotiation 
now  pending,  as  we  shall  presently  show.  Do  they  not  see  this  ?  Or  seeing 
it,  are  they  determined  to  undertake  the  desperate  task  of  forcing  England, 
to  take  a  step  so  degrading  7  Can  they  possibly  expect  that  she  will  ever 
yield  to  such  a  demand  f  Let  us  reverse  the  case,  and  suppose  that  Eng- 
land were  to  make  a  similar  demand  on  us — is  there  a  man  in  the  whole 
United  States,  who  would  not  feel  it  to  be  his  solemn  duty  to  submit  to  the 
loss  of  every  earthly  possession — even  of  life  itself — to  avert  if  possible, 
aach  deep  dishonour  of  his  country  T  Who  indeed  cculd  expect  to  live  in 
peace  and  security,  if  his  country  should  once  make  a  concession  so  dis- 
graceful 1  Nations,  in  matters  of  public  concern,  as  well  as  individuals  in 
private  matters,  well  know  that  concessions  of  this  kind  will  not  purchase 
peace  but  for  a  brief  season — and  will  therefore  resist  such  demands,  cost 
what  it  may. 

In  our  next  number  we  shall  present  our  views  of  the  alleged  discovery 
of  the  Columbia  river  by  Captain  Gray  in  1792. 

It  was  our  intention  before  taken  up  the  head  of  the  subject  to  consider 
the  question,  whether,  supposing  the  provision  of  the  Nootka  convention 
concerning  settlements  to  have  been  abrogated  by  the  war  of  1796,  it  was 
renewed  by  the  treaty  of  Madrid  in  1814.  But  we  have  already  dwelt  so 
long  on  this  convention,  that  we  feel  an  impatience,  in  which  we  are  appre- 
hensive our  readers  will  participate,  to  pass  on  to  another  topic  of  argument, 
reserving  what  we  have  to  say  on  this  point  for  some  future  occasion,  and 
contenting  ourselves  in  the  meanwhile  with  this  single  remark,  viz.  that  we 
make  no  question  whatever  that  the  provision  in  relation  to  settlements  was 
■0  renewed— that  this  convention  is  a  commercial  treaty  within  the  mean- 
ing of  the  treaty  of  Madrid ;  because  it  contains  stipulations  of  a  character 
decidedly  commercial  especially  as  regards  the  settlements;  and  that  if  the 
point  is  subject  to  any  doubt,  that  doubt  must  be  confined  in  these  clauses  in 


the  treaty  which  do  not  partake  of  that  character, 
plaio  good  lenae  of  the  matter. 


Thii  we  think  it  the 


^1 


NO.  T.-GBAY>8  DISCOVERY. 

Gray's  Alleged  Discovery  or  thi  Columbia  Uiver. — To   afflrm  that 
Spain  at  the  date  of  the  Nootka  Conventioa  hud  an  exclusive  right  to  the 
whole  country  now  in  dispute  by  the  right  ofdiscovery,  and  that  the  Suited 
States  acquired  an  exclusive  title  to  a  portion  of  the  same  country  by  Gray's 
discovery  of  the  Columbia  Riverin  1792,  is  apalpablo  contradiction,  which  no 
ingenuity  can  reconcile.    The  Hrst  proposition  involves  the  fuisity  of  the  sec- 
ond— the  second  involves  the  faloity  of  the  tfrst — and  it  is  a  mere  Bublely  to 
contend  that  this  is  either  no  contradiction,  or  that  such  contradiction  is  im* 
material,  because  the  title  of  Spain,  such  as  it  was,  is  now  vested  in  the  Unit 
ed  States.      The  case  has  been  indirectly  compared  to  that  of  a  pluintiiT  in 
ejectment,  who  claims  1st  under  his  own  mere  naked  possessiim  prior  to  the 
possession  of  the  defendant,  and  2nd,  under  a  documentary  title,  which  at 
tile  commencement  of  the  plaintiff's  possession  was  in  a  third  person,  by 
whom  such  title  was  subsequently  transferred  to  the  plaintiff  before  the 
commencement  of  his  suit.      This,  at  least,  appears  to  be  onn  of  the  views 
taken  of  the  subject  by  the  learned  Secretary  alluded  to,  who  has  however 
expressed  himself  so  obscurely,  that  we  are  not  sure  that  we  thoroughly 
nnderstand  him.     He  has  blended  with  this  view,  another  and  distinct  view, 
which  we  shall  presently  notice,  and  this  circumstance  somewhat  perplexes 
us.     But  taking  it  for  granted  that  he  does  mean  this,  or  that  this  is  a  par> 
of  his  meaning  let  us  see  whether  the  analogy  holds  good;  and  fur  the  pur- 
pose of  ascertaining  this,  let  us  ask  the  simple  question,  where  is  the  incon- 
sistency— where  is  the  contradiction — between  the  two  titles  thus  set  up  in 
the  case  supposed  7      Does  the  assertion  that  the  plaintiff  had  possession  of 
the  premises  in  dispute,  at  some  given  time,  before  the  defendants'  poseiess- 
ion  began,  contradict  the  assertion  that,  at  the  same  time,  the  true  title  was 
in  a  third  person  ?     Most  undoubtedly  not  at  ell.    It  needs  no  lawyer  to  see 
this;  and  would  this  fact  have  presented  any  obstacle  to  the  plaintiff's  re- 
covery, even  if  he  had  not  subsequently  acquired  the  true  title  ?       None 
whatever.      So  long  as  the  defendant  shows  no  title  in  himself— so  long  as 
he  shows  nothing  but  naked  possession,  he  has  no  case.       Ha  cannot  com- 
plain if  the  possession  is  taken  from  him  to  be  given  to  ihe  plaintiff;  for  the 
plaintiff's  possession  was  prior  to  his,  and  when  neither  party  has  any  doc- 
umentary title,  it  is  clearly  just  that  the  prior  possession  should  prevail. 
Where  then  is  the  analogy  between  these  two  casea  7     There  is  none  ;  and 


This  we  tbtok  it  tbe 


ER.— To   affirm  that 
ilusive  right  to  the 
and  tliat  the  Suited 
le  country  by  Gray'i 
itradictioii,  which  no 
the  fuisity  of  the  sec- 
iia  mere  sublely  to 
contradiction  is  itn- 
w  vested  in  the  Unit 
that  of  a  pluintiif  in 
ssession  prior  to  the 
tary  tir!e,  wliich  at 
I  a  third  person,  by 
plaintiff  before  tbe 
be  onw  of  the  views 
),  wlio  has  liowever 
that  we  thoroughly 
ir  and  distinct  view, 
uinewhat  perplexes 
or  that  this  is  a  par- 
)d ;  and  fur  the  pur- 
where  is  the  incon* 
lilies  thus  set  up  ia 
if  had  possession  of 
iefendaiits'  pos^eiis* 
I,  the  true  title  vias 
ds  no  lawyer  to  see 
}  the  plaintiff's  re- 
rue  title  7       None 
tiitnself — BO  long  as 
Ho  cannot  com* 
le  plaintiff;  for  ihe 
party  has  any  doc- 
on  should  prevail, 
here  is  none ;  and 


23 


the  Secretary's  illuitrai  ion  manilestly  fails  him.     Should  it  be  answered  thai 
notwithstanding  the  failure  of  this  particular  illustration,  it  is  yet  undeniable 
that  there  are  cases  in  which  parties  to  suits  at  law,  whether  plaintifl*  or 
defendants,may  set  up  conflicting  claims — claims  so  exposed  that  the  validity 
of  either  necesiarily  impliesthe  invalidity  of  the  other — we  admit  that  there 
are  such  cases  ;  but  we  reply,  by  asking.  What  if  one  of  the  claims  is  of  soch 
a  nature  that,  whether  it  be  good  or  bad,  it  necessarily  destroys  the  other, 
and  especially  if  each  is  of  that  kind  7     How  then  7     Does  not  the  party  set- 
ting up  such  claims,  effectually  overthrow  his  own  case'i      Anu  yet  this  is 
precisely  so  in  the  case  now  under  consideration ;  for  if  Spain  had  an  exclu  • 
sive  title  at  the  time  of  Gray's  discovery,  that  discovery  availed  nothing — 
and  if  Spain  had  no  exclusive  title — if  she  bad  lost  that  title  by  her  neglect 
of  the  country, — when  the  country  was  open  to  all  the  world — tne  title  was 
in  all  tbe  world — and  in  this  case  also,  the  discovery  was  of  no  avail.    And 
in  the  same  way,  the  very  fact  of  our  urging  Gray's  discovery  at  all,  even 
though  it  shall  bo  found  to  have  given  us  no  title,  destroys  the  claim  under 
the  Spanish  title,  fur  it  sets  up  a  principle  which  overthrows  that  title.    It 
involves  a  denial  and  a  disproof  of  that  title.     If  Spain  hail  become  acquaint- 
ed with  that  coast  at  or  about  the  time  of  Gray's  discovery,  and  that  discov* 
ery  hadbcen  made  within  the  last  2  or  3  years  ;  if  the  whole  coast  bad,  un- 
til at  or  near  that  period  remained  unknown  to  mankind,  and  the  question  in 
the  case  had  merely   been,  whether  Gray  was  the  original  discoverer,  or 
whether  the  Spanish  navigators  were  not  entitled  to  claim  that  honor,  then 
these  conflicting  claims  mi^'ht  have  been  set  up  together,  for  then  upon  the 
failure  of  one,  the  other  would  have  been  good ;  for  that  one  of  the  tvio 
should  bo  good,  would  then  have  been  a  matter  of  necessity,  supposing  all 
needful  things  to  have  been  done  in  each  case  tn  secure  to  the  respective 
parties  tho  results  of  their  itevcral  discoveries.     The  present  case  would  then 
have  been  analogous  to  iho  case  of  the  plaintiff  in  the  ejectment  above  put. 
And  wherein  lies  tho  difference  between  tho  present  case  and  the  case  last 
supposed  7     Simply  in  this,  that  the  discoveries  of  Spain  are  all  stale  discov- 
eries, and  so  fur  as  they  show  any  thing,  they  only  show  that  she  once  had 
a  little  which  is  now  extinct,  or  rather,  which  is  in  all  the  world.      They 
merely  serve  to  destroy  the  value  of  Gray's  discovery  to  the  United  States, 
while  they  aretliLtnselves  unavailable — the  claim  founded  on  these  discov- 
eries, though  in  itself  good  for  nothing,  is  yet  all  powerful  to  upset  the  other 
claim,  and  does,  in  fact,  utterly  destroy  it,  while  it  is,  in  turn,  itself  destroy- 
ed by  the  other;  for  insisting  on  Gray's  discoveries,  we  in  effect  contend  for 
and  establish  the  staleness  and  unayailableness  of  the  discoveries  of  Spain  : 
and  this  is  the  case  whether  we  succeed  or  not  in  establishing  the  claim  un- 


:24 


i'. 


W 


■  V  ' 

)  ^ 

I  ■  ■ 

■i. 


dar  Gray's  discovery.  To  contead  for  the  Gray  claim  at  all,  is  to  admit  and 
put  beyond  all  controversy  the  principle  of  the  Nootka  Convention,  viz.  that 
as  far  bitck  as  1790,  at  least,  the  country  in  dispute  was  open  for  settlement 
to  all  the  world-^open  to  the  first  occupant. 

In  all  ordinary  cases  of  oonflicting  claims  set  up  by  the  same  party — as 
least,  in  all  we  ever  read  or  heard  of,  as  far  as  we  can  remember,  and  at 
far  as  wo  can  now  imagine,  either  claim  is  a  gainer  by  what  the  other  loses. 
Whatsoever  makes  against  the  one,  is  in  favour  of  other.  But  in  this  case 
it  is  not  so — for  here  each  claim  destroys  the  other,  without  thereby  estab- 
lishing, or  even  strengthening  itself.  The  case  is  in  this  respect  very  pecu- 
liar. However  strange  the  learned  Secretary  may  think  it,  (and  he  seems 
much  surprised  that  it  should  be  so,)  the  title  of  the  United  States  is  cer- 
tainly worsO'in  consequence  of  the  attempt  to  unite  the  claims,  than  if  we 
hud  relied  upon  either  alone.  The  attempt  has  placed  both  claims  entirely 
hors  du  combat.  By  aslerting  both,  both  have  been  denied  and  shown  to 
be  false.  It  is  a  case  not  unlike  the  case  of  the  Kilkenny  cats.  The  two 
claims  have  fairly  eaten  each  other  up.  The  cats  indeed  left  each  other's 
tails,  but  here  nothing  is  left  at  all.  The  case  is  even  worse  than  this,  in 
fact,  for  the  claim  under  Gray's  discovery,  by  admitting  that  the  country 
was  open  for  settlement  in  1790,  admits  that  it  was  no  longer  within  the 
field  of  discovery,  or  at  least  of  orisiual  discovery — of  discovery,  such  as 
could  be  made  the  foundation  of  territorial  claims.  The  claim  reduces  it- 
self to  the  rank  of  a  secondary  discovery.  It  then  destroys  itself,  for  it  in- 
volves a  self  contradiction — it  eats  itselt  up.  It  is  an  absurdity,  in  other 
words,  upon  its  very  face — it  asserts  a  palpable  impossibility,  viz.  that  the 
country  was  open  fur  settlement  by  all  the  world,  and  was  yet  nevertheless 
open  for  the  acquisition  of  territory  by  mere  discoveries  alone.  To  say  that 
by  discovering  the  outlet  of  a  river  in  a  country  previously  known  to  all 
the  world  and  open  to  all  the  world,  you  have  acquired  a  title  to  the  coun- 
try or  any  part  of  it,  is  a  positive  solecism.  The  falsity  of  the  proposition 
is  a  mathematical  certainty.  It  is  clear  as  light.  The  principle  of  the  Noot. 
ka  convention,  in  short,  which  the  claim  sets  up,  is  as  fatal  to  this  claim  it- 
self, as  it  is  to  the  Spanish  title.  •  .  - 
,  It  is  a  matter  of  no  small  surprise,  we  think,  that  our  Secretary  of  State, 
who  is  now  in  the  Senate,  and  for  whose  soundness  of  judgment  and  clear 
sightednesB  in  all  our  public  affairs,  as  well  as  bis  sincerity  and  uprightness, 
we  entertain,  in  common  with  the  public  at  large,  the  highest  respect  should 
have  fallen  among  ethers  into  the  error  of  setting  up  these  contradictory 
claims,  especially  as  his  course  in  the  Senate,  as  well  now  as  formerly,  ap- 
parently indicates,  that  his  views  of  this  subject  correspond  mainly,  or,  at 


t* 


n  at  all,  is  to  admit  and 
ca  Convention,  viz.  that 
•as  open  for  settlement 

Y  the  same  party— as 
»n  remember,  and  at 
r  what  the  other  loses, 
her.    But  in  this  case 
ithout  thereby  estab- 
his  respect  very  pecu- 
link  it,  (and  he  seems 
United  States  is  cer- 
the  claims,  than  if  we 
1  both  claims  entirely 
lenied  and  shown  to 
>nny  cate.    The  two 
Jed  left  each  other's 

worse  than  this,  in 
og  that  the  country 
>  longer  within  iho 
f  discovery,  such  as 
'he  claim  reduces  it- 
troys  itself,  for  it  in- 
1  absurdity,  in  other 
bility,  viz.  that  the 
was  yet  nevertheless 
alone.    To  say  that 
iisly   known  to  all 
a  title  to  the  coun- 

of  tlio  proposition 
•incipleof  theNoot. 
tal  to  this  claim  it- 
Secretary  of  State, 
udgment  and  clear 
ly  and  uprightness, 
best  respect  should 
bese  contradictory 
w  as  formerly,  ap- 
ond  mainly,  or,  at 


least,  in  some  important  particulars,  with  our  own.  But  we  explain  the 
inconsistency,  (for  such  we  think  it,)  between  his  diplomatic  letters  and 
the  diplomatic  and  legislative  inactivity  which  he  has  all  along  recommend- 
ed,  by  reflecting  that  in  writing  these  letters  he  probably  considered  him- 
self to  be  acting  as  an  advocate,  who  was  bound  to  reason  his  client's  case 
according  to  the  client's  views,  rather  than  his  own. 

He  was  obliged  to  exhibit  the  subject  as  it  was  regarded  by  other  public 
men,  and  not  as  he  regarded  it  himself.  We  think,  indeed,  that  bis  letters 
bear  upon  the  face  of  them  full  proof,  that  this  was  at  least  partially  the 
case,  and  we  believe  it  to  have  been  so  altogether.  We  are  therefore 
bound  to  say,  that  we  do  not  consider  him  re|ponsible  for  any  false  views 
of  the  subject,  or  any  false  reasoning  or  feebleness  of  argument  or  incon- 
sistency which  his  letter  exhibit.  The  same  thing  may  possibly  be  true  also 
with  respect  to  the  present  Secretary ;  but  we  have  no  proof  of  it  in  his 
letters,  nor  has  he  ever  said  or  done  anything  in  bis  Senatorial  capacity,  as 
far  as  we  can  remember,  to  induce  such  a  belief,  and  we  tbereiore  take  it 
for  granted,  that  he,  at  any  rate,  is  altogether  in  earnest,  and  expresses  his 
real  opinions. 

The  truth  is,  there  is  no  way  of  turning  Gray's  discovery  to  any  account 
but  by  insisting  that  he  was  the  original  discoverer  of  the  N.  W.  Coast ;  that 
all  the  previous  discoveries  in  that  quarter,  as  well  by  the  Spanish  as  by  the 
English  navigators,  amounted  to  just  nothing  at  all !         r.ty  .^ 

It  is  perfectly  idle  then  to  talk  of  this  discovery,  and  especially  to  talk 
at  the  same  time  of  the  exclusive  title  of  Spain.  All  the  world  see  the  ab- 
surdity of  it,  except  our  own  country,  and  all  the  world  is  laughing  at  it, 
and  if  we  persist  in  such  nousense,  we  shall  be  looked  upon  by  the  rest  of 
mankind  as  a  nation  of  incorrigible  simpletons. 

Another  view  which  the  learned  Secretary  appears  to  take  of  the  subject 
and  has,  in  fact,  blended  as  before  observed  with  the  view  alretidy  discuss- 
ed, is,  that  the  United  States  are  to  be  regarded  as  having,  at  least,  acquired 
by  Gray's  discovery  a  possession  of  the  country  in  dispute,  or  some  part  of 
it;  and  that  by  subsequently  acquiring  the  title  of  Spain,  we  have  conOrm- 
ed  that  possession  and  rendered  it  indefeasible.  He  dues  not  indeed  ex- 
pressly say  this,  yet  we  think  hei  meant  it,  though  he  has  not  stated  his 
meaning  as  clearly  as  the  case  required.  But,  surely,  this  cannot  be  so.— 
The  mere  finding  the  mouth  of  the  Columbia  River  and  the  entrance  of  its 
mouth  by  Gray,  could  not,  under  any  circumstances,  confer  upon  the  Uni- 
ted States  even  a  mere  nominal  possession,  unless  Gray  did,  in  fact,  nomi- 
nally take  possession,  in  behalf  of  the  United  States,  of  which  we  have,  as 
yet,  seen  no  suggestion,  and  a  mere  nominal  possession  is  no  possession  at 


26 


1*1 


?■■  1 


all  for  the  parposee  of  the  present  dispute.  Perhaps,  hnwever,  the  Secre* 
tary  meant  to  refer  to  the  settlement  at  Astoria,  as  constituting  a  possession 
of  the  conntry  by  the  United  States.  This  we  shall  sho.v  in  its  proper 
place,  vested  no  possession  in  the  United  States,  either  nominal  or  real ;  for 
the  very  satisfactory  reason  that  it  was  not  made  with  any  such  view,  at 
well  as  for  other  reasons,  which  we  shall  hereafter  notice. 

The  foregoing  remarks,  we  trust,  have  at  least  shown  that  the  United 
States  cannot  at  the  same  time  insist  on  Gray's  discovery  and  on  the  Spanish 
title— that  if  they  have  not  precluded  themselves  from  insisting  on  either, 
they  mast  at  any  rate  make  their  election  between  the  two.    If  they  insist 
on  Gray's  discovery,  they  mustabandon  the   Spanish  title  ;  and  if  they  in* 
■ist  on  the  latter,  they  must  give  up  the  former.    This  election,  we  contend, 
they  had  already  made,  before  they  set  up  the  Spanish  title.     They  had  pre  - 
eluded  themselves  from  insisting  on  that  title,  before  they  acquired  it,  by 
setting  up  a  claim  upon  the  strength  of  Gray's  discovery  and  under  the  set- 
tlement of  Astoria,  either  or  both  of  them.    To  claim  the  country  or  any 
part  of  it  on  either  or  both  these  grounds  was,  in  fact,  to  set  up,  as  already 
observed,  the  principle  of  the  Nootka  convention — it  was  to  admit,  and  the 
United  States  did  thereby  admit,  that  Spain  had  no  exclusive  claim  to  the 
country — that  it  was  open  to  all  the  world — to  the  first  occupant.   The  con- 
vention of  1813  is  a  solemn  record  of  that  admission- -a  deliberate  sanction 
of  that  principle ;  and  the  United  States  cannot  deny  it  to  have  been  so, 
without  shocking  the  common  eense  of  mankind.     It  was  indeed,  we  are  in- 
clined to  think,  nothing  more  nor  less  than  the  Nootka  convention  over  again 
but  in  a  fewer  words,  and  with  no  other  substantial  difference  than  the  sub- 
stitution of  the  United  States  as  one  of  the  parlies  in  the  place  of  S|)ain 
and  the  additional  icature  of  a  limited  duration,  amounting  in  eflect  to  nothing 
To  the  principle  of  the  Nootka  convention,  then,  the  United  States  are  irre- 
vocably committed;  and  when  they  insist,  ns  they  constantly  do,  ou  Gray's 
discovery  and  the  settlement  at  Astoria,  they,  in  fact,  do  nothing  but  contin- 
ually urge  that  principle;  and  yet  by  insisting  on  the  Spanish  title,  they  are 
calling  upon  England  to  give  upthut  very  principle.  Ci.nany  thing  be  moro 
unreasonable — more  thoroughly  absurd  ? 

We  are  hero  temptod  to  noiico  certain  remarks  of  tlio  Secretary  already 
80  often  referred  to,  on  the  subject  of  iha  convention  of  1818.     Tiio  first  is 
that  the  American  negotiators,  who  took  part  in  the  framing  of  that  conven- 
tion, '  did  not  assert  that  iho  United  States  had  a  perfect  title  to  that  country  ; 
but  that  tlieir  claim  was,  at  least,  good  as  against  Great;  IJrituin.'     Upon  this 
we  remark,  it  is  now  no  matter  what  our  negotiators  asserted  or  did  not  ns- 


27 


■ort,  in  the  courso  of  iha  negotiation.  The  convention  must  speak  for  itself; 
and  on  tho  face  of  tho  instrument  it  is  apparent  that  the  United  States  claim- 
ed an  interest  in  tha  country  of  soma  sort;  and  thay  cojld  not  claim  any  in* 
tarest  at  all  in  it,  withiut  impliedly  denying  tha  exclusive  title  of  Spain,  or, 
in  other  words,  sstting  up  the  principle  of  ihe  Nootka  convention.  As  to 
^he  distinction  implied  in  the  above  quotation,  viz  ,  that  the  title  of  the  Uni- 
ted St  Jtes  under  Gray'a  discovery  might  b3  good  as  against  Great  Britain 
and  not  as  against  Spain,  we  have  elsewhere  shown  that  to  be  frivolous.— 
There  is  no  such  thing  as  a  good  title  by  discovery  a3  against  a  particular  na- 
tion, and  not  as  against  another.  IF  a  discovery  is  original  and  gives  title  at 
all,  it  gives  a  title  againU  all  the  world,  and  if  it  is  not  original,  it  gives  no 
title  wlmtevev. 

Another  remark  of  the  Secretary  is,  that  the  convention  of  1813  contains 
a  reservation  of  tho  claims  of  any  third  power  to  that  country.     'This,'  he 
says, '  could  hive  bjeu  intaadodfor  the  claim  of  Spain  alone.'     Here  he  is 
again  taking  far  granted  the  exclusive  title  of  Spain.    This  idea  meets  us  at 
every  turn,  and  thus  we  (lad  hiui  constantly  begging  the  question.     Canuot 
he  reason  batter  than  this?     In  what  school  has  he  learned  his  dialectics  7 
and  where  has  he  received  his  forensic  education  ?     This  reservation,  with- 
out d  lubt,  refers  geuorally  to  the  rights  of  all  other  nations,  and  not  specifi- 
cally totlia  claimiof  Si)iin.    The  facts  of  tho  case  not  only  warrant,  but 
require  tnls  c  juuructiou ;  for  the  parties  were  dfjaling  with  that  which  be- 
longed to  all  the  world.     The  reservation  was,  however,  totally  needless; 
for  tho  coavention  contained  nothing  that  could  impair  tha   rights  of  other 
States;  neither  did  tha  Nootlta  coavention.     It  was  not  amiss,  however,  to 
insert  tha  rosarva'ion,  merely  to  show  the  v7orld  that  the  parties  had  no  idea 
of  oxeluJing  othar  nations  Irom  their  just  rights — that  they  made  no  e.xcla- 
sive  claiin— and  it  saems  mjst  clearly  to  identify  tha  principle  of  this  conven- 
tion with  that  of  tho  Nootlia  convention. 

Having  now  shown,  as  we  think,  satisfactorily,  that  tfic  claim  under  Gray's 
discovery,  and  tha  clai.n  under  Spain,  mutually  destroy  each  other;  or,  at 
all  events,  that  one  only  of  these  claims  can  bo  urged  at  the  same  time,  wo 
will  next  proceed  to  sliow  that  even  if  Gray  had  been  the  first  man  to  visit 
the  North  West  Coast,  his  discovery  would  have  conferred  no  rights  upon 
the  United  States ;  a  task  which  is  soon  accomplished ;  for  Gray  was  a  mere 
private  navigator.  He  bore  no  national  commission.  This  distinction  our 
negotiators  have  treated  as  a  novelty,  having  no  foundation  in  the  law  of  na- 
ions.  Pray,  when  did  they  last  read  Vattel  ?  Or  did  they  never  read  him  t 
That  Vattel  makes  ihe  distinction,  we  have  already  shown  in  our  first  nom- 
bor;  and  we  need  not  here  repeat  what  was  there  said  on  the  subject.  Bnt 


ift 


even  if  Gray  had  beeu  an  ofRcer  of  the  United  States,  he  so  dealt  with  his 
discovery,  that  bis  government  could  not  have  roade  it  the  ground  of  a  terri- 
torial claim.     Wu  have  no  proof,  not  even  a  suggestion,  as  already  stated, 
that  he  ever  took  a  nominal  possession  of  the  country  about  the  mouth  of  the 
Columbia  river,  or  made  any  claim  to  it  in  any  way ;  and  it  does  appear  that 
ha  did  not  report  his  discovery  to  the  United  States  government.  He  report- 
ed it  to  foreigners,  by  whom  it  was  published  to  the  world,  and  not  by  him- 
self.   His  own  government  knew  nothing  of  it  until  the  publication  of  Van- 
couver's juuriml  ;  and  at  what  precise  time  they  learned  it  from  that  source 
has  not,  we  believe,  been  publicly  stated.     And  when  they  did  learn  it, 
what  did  they  do  7     Did  they  send  and  tuko  possession,  even  nomiually  7  or 
did  they  in  any  way  claim  the  country  and  publish  the  claim?    They  did 
neither.     At  least,  they  never  made  the  claim  known,  until  they  began  to 
negotiate  on  the  subject  with  England,  which,  if  we  remember  rightly,  was 
first  at  Ghent,  in  1814,  more  than  twenty  years  after  the  discovery,  which 
was  fur  too  late;  anJ  besides,  there  was  no  publication  to  the  world  at  large; 
end  as  for  possession,  the  settlement  of  Astoria  was  no  act  of  the  United 
States,  but  was  also  the  act  of  a  private  adventurer,  who  set  up,  we  believe, 
no  territorial  claim,  or  claim  to  the  soil  or  sovereignty  even  in  his  own  be- 
half, and  much  Ichs  did  he  do  it  in  behalf  of  his  government ;  and   this  set- 
tlement was  not  made,  be  it  observed,  until  nearly  twenty  years  after  the 
discovery,  (again  too  late)  and  was  moreover  soon  abandoned. 

The  discovery  of  Gray,  then,  of  which  so  much  has  been  said,  amounts  to 
nothing  alter  all,  in  any  view  of  the  case.  It  was  not  so  dealt  with,  that  it 
could  have  been  made  the  foundation  of  a  territorial  claim  on  behalf  of  the 
United  States,  if  it  had  been  unquestionably  an  original  discovery,  which  it 
was  not,  for  the  discovery  was  made  by  Huceta,  and  merely  confirmed  by 
Gray;  and  the  field  of  original  discovery  in  that  quarter,  as  we  have  already 
shown,  had  been  long  closed  before  it  was  entered  even  by  lleceta.  The 
results  of  this  disco^ry  belong  to  the  world  at  largo.  Gray  abandoned 
them  to  the  world.  He  made  them  the  common  property  of  mankind 
whatever  they  were ;  though  he  does  not  appear  to  have  had  un  idea  that 
any  one  would  ever  think  of  this  discovery  as  a  foundation  of  title  to  the 
country  which  he  visited.  And  as  he  did  not  himself  so  regard  it,  it  cannot 
be  so  regarded  by  others.  All  this,  we  consider,  is  clear  enough  upon  the 
principles  stated  in  our  first  number;  but  a  simple  illustration  will  make  it 
still  clearer.  Upon  these  principles,  the  resulu  of  the  discovery  of  Gray, 
had  it  been  an  original  discovery,  belonging  to  himseli  in  case  he  had  chosen 
to  appropriate  them.  And  suppose  he  had  done  so.  Suppose  he  hud  taken 
possessiun  in  bis  own  name,  and  had  then  gone  to  Franco— assigned  bis 


■'**f 


dealt  with  hi« 
round  of  a  terri- 
already  stated, 
le  mouth  of  the 
oes  appear  that 
ent.  Hereport- 
ud  not  by  him- 
lication  of  Van- 
om  that  source 
Y  did  leara  it, 
nominally?  or 
m?    Thoy  did 
I  they  began  to 
)er  rightly,  was 
scovery,  which 
)  world  at  large ; 
t  of  the  United 
up,  we  believe, 
I  in  his  own  be- 
t;  and   this  set- 
years  after  the 
;d. 

laid,  amounts  to 
;alt  with,  that  it 
on  behalf  of  the 
jovery,  which  it 
ly  conflrmed  by 
«e  have  already 
lleceta.  The 
rray  abandoned 
ty  of  mankind 
lad  an  idea  that 
1  of  title  to  the 
ard  it,  it  cannot 
lough  upon  the 
on  will  make  it 
overy  of  Gray, 
9  he  had  chosen 
le  he  had  taken 
9— assigned  bis 


m 

claim  to  her,  and  carried  out  and  planted  a  French  colony  at  the  month  of 
ha  Col  umbia  River — would  the  United  States  have  had  a  right  to  dispoi* 
sess  that  colony,  because  Gray  was  a  citizen  of  this  country  f  We  opine  not  ; 
and  this  tests  our  principle.    It  shows  the  principal  to  be  correct.     It  shows 
that  Gray  could  have  done  what  he  pleased  with  his  discovery;  and  as  he 
did  nothing,  the  results  of  it  belong  no  more  to  his  own  country  than  they  do 
ta  the  rest  of  the  world.    There  may  indeed  be  instances,  in  which  nations 
have  setup  claims  in  similar  cases— and  other  nations  may  have  acquiesced 
iu  them — but  this  proves  nothing.    There  is  no  more  reason  why  a  man's 
country  should  claim  the  results  of  his  geographical  discoveries,  when  he 
has  not  claimed  them  himself,  than  why  it  should  claim  the  results  of  bis  dia* 
ooveries  iu  science  or  in  the  arts,  when  he  has  himself  om  itted  to  claim 
these. 

Away  then  with  this  shallow  pretence  that  the  United  States  acquired  a 
title  to  the  Oregon  territory  or  any  part  of  it,  by  Gray's  discovery.  Let  as 
hear  no  more  of  it.  We  care  not  what  great  names  may  be  associated  with 
it — it  is  mere  dreaming  and  driveling — it  is  altogether  puerile  to  talk  of  such 
a  claim.  As  a  mere  dry,  legal  question,  and  such  it  undoubtedly  is,  there 
is  not  a  shadow  of  duubt  ou  the  subject.  Nothing  can  exceed  the  folly  of 
setting  it  up,  except  the  folly  after  it  was  set  of  bringing  forward  the  Span* 
ish  title  to  destroy  it ;  unless  indeed  an  apology  may  be  found  for  that  actia 
the  utter  worthlessness  of  the  claim. 

One  of  the  positions  taken  by  the  late  Secretary  we  feel  bound  to  notice ; 
not  because  we  think  it  can  be  material,  after  clearly  refuting,  as  we  believe 
we  have  done,  the  claim  under  Gray's  discovery,  but  lest  by  omitting  to 
contradict,  we  may  be  supposed  to  have  assented  to  the  doctrine  conveyed 
thereby.  It  is  the  position  that  the  discovery  of  the  mouth  of  the  Columbia 
Biver,  in  connection  with  the  post  at  Astoria,  and  the  othersettlements  made 
by  Astor,  and  the  explorations  of  Lewis  and  Clark,  entitles  the  United  State 
to  claim  the  whole  valley  drained  by  that  River.  The  doctrine  is,  that  a - 
nation  by  merely  discovering  the  mouth  of  a  river — partially  exploring  the 
region  through  which  it  flows,  and  making  two  or  three  insignificant  settle^ 
ments  on  its  branches,  which  settlements  it  abandoned  in  three  or  four 
years,  acquires  a  title  to  that  whole  region,  no  matter  ho  w  extensive.  This 
doctrine  we  protest  against  as  most  extravagant.  It  is  wholly  unwarranted 
Ity  anything  to  be  found  in  the  works  of  standard  writers  on  public  law ;  and 
we  roundly  deny  that  the  practice  of  nations,  as  the  present  Secretary  has 
intimated,  has  established  any  such  rule.  It  is  admitted  in  the  very  state- 
ment of  the  rule,  that  exploring  is,  in  such  caso,  an  essential  requisite  to  give 
a  title.    But  exploration  cannot  make  a  title,  either  separately  or  in  conneo- 


'<? 


30 


*^ 


tion  with  original  discovery  aod  settlement.  Exploration  is  merely  secon- 
dary discovery,  whicli,  we  have  shown  in  a  previous  number,  cannot  be 
made  the  foundation  of  a  territorial  claim.  There  is  no  reason  why  it  should 
and  that  is  reason  enough  why  it  should  not.  And  in  addition  to  this,  the 
clrshing claims,  which  must  almost  unavoidably  t  !--  from  allowing  secon- 
dary discoveries  to  be  made  a  foundation  of  title,  is  ati  aifirmative  reason,  and 
a  decisive  one,  against  such  allowance.  So  we  think  the  courts  of  law  would 
clearly  hold.  If  original  discovery  alone,  or  settlement  alone,  or  both  lo- 
gfether,  have  not  given  a  title,  mere  exploration,  the  courts  would  say,  can- 
not help  the  case. 

Indeed  we  think  that  in  the  whole  discussion  of  the  Oregon  question  be 
the  public  men  of  this  country,  a  great  deal  too  much  importance  has  been 
attached  even  to  original  discovery  itself  as  a  sole  source  of  title — a  much 

greater  degree  of  importance  than  Vattel  appears  to  have  assigntid  to  it — 
more,  vastly  more,  than  upon  principle  it  deserves.  Vattel  says,  that  w^hen 
a  nation  discovers  a  country,  takes  a  noraiaal  possesnion,  and  soon  after  a 
real  possession,  '  it  has  been  common  to  respect  titles  so  acquired.'  He  does 
not  even  affirm  in  express  terms  that  a  mere  discovery,  accompanied  with  a 
nominal  taking  of  possession,  gives  a  title.  He  appears  to  consider  that  the 
taking  of  a  real  possession  soon  after  is  essential.  Yet  we  do  not  doubt  that 
in  some  cases,  Vattel  would  have  admited  a  title  founded  on  mere  disco- 
very and  a  nominal  taking  of  possession  to  be  good  ;  as,  for  instance,  when 
a  nation  having  made  such  a  discovery  and  claim,  proceeds  with  all  reason- 
able despatch  to  send  out  a  colony  to  take  a  real  possession,  and  some  other 
nation  in  the  mean  time  hearing  of  the  discovery,  perhaps  from  herself,  gets 
the  start  of  her  and  plants  the  first  colony.  In  such  case,  we  believe,  Mr. 
Vattel  would  have  admitted  the  right  of  the  nation  who  made  the  discovery, 
to  dispossess  such  colony  for  the  purpose  of  establishing  her  own  lu  iu 
place.  And  this,  we  are  strongly  inclined  to  think,  is  pretty  much  the 
whole  amount  of  the  doctrine  that  discovery  gives  a  title.  The  discovery 
must  be  followed  up  by  real  possession  within  a  brief,  a  very  brief  period, 
or  the  right  it  gives  is  lost,  and  the  country  becomes  open  to  the  first  occu- 
pant. The  great  moral  principle  on  which  the  law  of  nations  is  founded — 
the  general  good  of  mankind — imperiously  requires  this.  The  result  is' 
that  a  title  resting  on  mere  discovery  is  one  of  the  feeblest  of  all  possible 
titles,  and  that  no  claim  to  the  N.  W.  Coast,  or  the  interior  country  of  that 
coast,  either  by  Spain,  or  England,  or  the  United  States,  resting  on  that  sole 
foundation,  is  worth  any  thing  at  all;  for  no  discovery  in  that  quarter  ha» 
eii  followed  up  by  a  real potstssion  soon  after. 


31 


The  doctrine  of  title  by  discovery  is  manifestly  confined,  or  ought  to  be, 
within  very  narrow  limitH ;  limits  which  clearly  (orbid  an  appeal  to  ancient 
discoveries ;  and,  in  this  case,  an  attempt  has  been  made  to  extend  it  far  be> 
yund  those  limits.     In  truth,  it  is  tu  be  regarded,  wo  think,  so  far  at  least  as 
respects  the  Spanish  title,  in  the  light  of  an  attempt  to  carry  into  effect  the 
bull  of  Pope  Alexander  6th,  by  which  he  gave  to  Spain  the  whole  of  the 
new  world  on  the  ground  of  its  discovery  by  Colambus.    Spain,  it  is  gene- 
rally supposed,  relied  more  upon  the  decree  for  her  thle  to  the  N.  W.  Coast, 
han  upon  her  discoveries  in  that  quarter.   She  regarded  the  country  as  her 
own,  by  virtue  of  that  decree,  long  before  her  navigators  had  visited  it  at 
all;  and  it  is  certainly  somewhat  curious  that  our  own  Protestant  Republi- 
can Government  should  be  the  first  in  the  world  to  undertake  seriously  tbe 
task  of  enforcing  the  arrogant  and  ridiculous  pertensions  of  the  15th  cen- 
tury ;    for  we  have  acquired  and  have  endeavoured  to  enforce  the  right  on 
Spain  to  that  country,  when  she,  in  truth,  bad  no  right  but  the  right  which 
that  decree  gave  her,  and  even  that  right,  or  rather  pretence  of  right,  she 
herself  had  relinquished  by  the  Nootka  Convention.    Verily,  we  think  our 
statesmen  might  have  found  better  employment  than  that  of  bnoting  up  and 
acquiring  this  stale  claim — this  wretched  relic  of  departed  Papal  power.— 
What  was  given  for  it,  we  do  not  remember,  or  whether  any  thing — 
we  believe,  however,  nothing  at  all,  or  nothing  of  much  vulue  ;  and  if  ao, 
then  the  very  facility  of  its  acquisition  shows  that  Spain  attaches  no  value 
to  it  whatever.    Doubtless  she  must  have  laughed  at  our  eagerness  to  ac- 
quire such  obsolete,  antiquated  trash;  for  her  journalists  are  now  joining  in 
the  general  outcry  of  the  whole  European  press  against  the  palpable  injus- 
tice, unreasonableness,  absurdity,  and  folly  of  our  exclusive  pretensions — in 
the  universal  hiss— or  we  might  rather  say  the  angry  sbout  of  scorn  and  de- 
rision— witii  which  those  pretensions  have  been  received  by  the  rest  of  man- 
kind, and  which  may  yet  perhaps  prove,  if  these  pretensions  are  obstinately 
persisted  in,  to  the  extent  of  breaking  the  peace  of  the  world  by  this  miser* 
able  brawl,  the  omiuus  precursor  of  a  g'-and  crusade  against  our  own 
country. 

While  in  the  act  of  penning  the  preceding  sentence,  we  received  a  paper 
containing  Mr.  Gallatin's  first  letter;  and  we  are  happy  to  see  that  his  views 
of  the  Spanish  title  agree  so  well  with  our  own  ;  but  we  are  apprehensive 
that  he  will  not  agree  with  us  altogether.  We  think  he  intends  to  take  a 
view  of  Cray's  discovery  entirely  dilTerent  from  the  above,  as  well  as  of 
other  points  we  have  yet  to  discuss.  We  shall  proceed  however  to  express 
our  own  opinions  in  our  own  way,  but  with  the  utmost  respect  for. his,  and 
with  the  most  profound  regret  at  finding  that  distinguished  statesman  and 


I'        f 


■'* 


,> 


' 


1     ,      '*■ 


M. 


most  excellent  and  venerable  man  to  be  against  us  if  it  shall  ao  tarn  odt. 

We  shall  next  consider  the  effect  of  the  settlement  at  Astoria  and  its  inci' 
dents.  As  to  Lewis  and  Clark's  explorations,  they  are  not  worthy  of  the 
least  regard,  after  what  we  have  said  of  Gray's  discovery.  They  manifestly 
stand  upon  no  better  footing,  if  as  good.  To  discuss  them  would  be  a  mere 
repetition  ot'the  arguments  just  stated.  Wo  shall  only  remark  upon  them, 
that  the  present  Secretary  in  commenting  qp  the  expedition  of  Lewis  and 
Clark,  takes  particular  cure  to  state  that  they  were  furnished  with  a  com- 
mission from  their  government  *,  and  why  advert  to  this  fact,  if  it  was  unim- 
portant—if  the  distinction  impliedly  taken  by  Vattel,  between  private  and 
public  adventurers  is  a  mere  novelty  in  public  law  ?  In  doing  this,  he  has 
himself  implicitly  admitted  this  distinction,  although  he  elsewhere  treats  it 
with  scorn. 


NO.  TI.-TJaB  8BTTi:.BinENT  AT  A8TOKIA. 

Ths  Settlkmknt  at  AsToniA  asd  its  Incidents. — The  United  States, 
we  hold  most  clearly,  acquired  no  title  by  the  settlement  of  Mr.  Astor  at  the 
mouth  of  the  Columbia  River,  and  the  posts  connected  therewith  on  the 
upper  parts  of  that  river ;  because  that  settlement  was  not  a  national  enter- 
prise, and  because  it  was  sooa  abandoned,  and  has  never  been  resumed.. 

As  for  the  first  branch  of  this  remark ;  Mr.  Astor  and  his  associates  were 
mere  private  adventurers :  so,  at  least,  it  would  appear  from  all  that  has  yet 
been  said  on  the  subject  of  this  settlement.  It  has  not  been  suggested,  so 
far  as  we  have  seen,  tlut  they  carried  oat  with  them  any  authority  from  the 
government  of  the  United  States,  to  plant  a  colony  in  that  country.  Such 
authority  they  could  not  have,  without  an  act  of  Congress.  The  President 
alone,  unlike  the  executive  of  any  European  government,  has  no  power  to 
confer  such  authority ;  and  if  any  act  of  Congress  had  ever  been  passed,  giv- 
ing such  authority  to  Mr.  Astor  or  to  any  one  else,  doubtless  the  fact  would 
have  been  referred  to  long  before  this  in  the  course  of  the  present  dispute. 
And  so  if  such  authority  had  ever  been  conferred  upon  that  gentleman  by 
an  official  act  of  the  President ;  which,  however  unavailing  it  might  have 
been  for  all  mere  municipal  purposes,  would  perhaps  have  been  good 
as  against  other  nations,  unless  Congress  had  expressly  refused  to  ratify  it. 
We  take  it  for  granted  then,  that  Mr.  Astor  had  no  public  authority  to  form 
settlements  in  that  country.  We  doubt  indeed,  whether  the  government  of 
the  United  States  was  ever  made  acquainted  with  bis  intentions  to  form 
snch  settlements  until  after  they  had  been  formed ;  and  we  doubt  moreover, 
whether  the  government  ever  knew  that  such  settlements  had  been  formed 


t 


83 


ill  ao  taro  oat. 
storia  and  its  inci' 
not  worthy  of  the 
Tbey  manifestly 
would  be  a  mero 
iuiark  upou  them, 
ion  of  Lewis  and 
shed  with  a  com- 
et, if  it  was  unim- 
iwoen  private  and 
doing  this,  he  has 
ilsewhere  treats  it 


rOKIA. 

he  United  States, 
f  Mr.  Alter  at  the 
therewith  on  the 

a  national  enter- 
een  resumed., 
a  associates  were 
m  all  that  has  yet 
Ben  suggested,  so 
uthority  from  the 
;  country.    Such 

The  President 
has  no  power  to 
>een  passed,  giv- 
is  the  fact  would 
present  dispute. 
t  gentleman  by 
S  it  might  ha^e 
ave   been  good 
ised  to  ratify  it. 
uthority  to  form 
)  government  of 
motions  to  form 
loubt  moreover, 
td  been  formed 


until  shortly  before,  or  perhaps  until  after  they  had  been  relinquished.    We 
take  it  for  granted  further,  vuat  Mr.  Astor  did  not  claim  to  act  at  all  in  that 
matter  by  any  such  authority,  or  for  the  benefit  of  his  government — that  he 
did  not  go  to  that  country  with  any  view  of  there  establishing  the  sovereign- 
ty of  bis  government — that  his  objects  were  not,  in  the  least,  of  a  public  na- 
ture— that  they  were  purely  private.     We  submit  then  that  his  proceedings 
did  not — that  they  could  not  establish  the  sovereignty  of  this  country  over 
those  settlements;  and  that  whatever  may  have  been  his  own  views  and  in- 
tentions, the  mere  want  of  any  previous  public  authority  or  subsequent  pub- 
lic rtitificatiou  of  his  acts  precludes  the  idea  that  he  did  so  establish  it.      ^^ 
We  will  first  suppose,  what  was  probably  tbo  fact,  that  he  had  no  such  in- 
tention— that  his  intentions  were  to  foro)  settlements  for  those  particular  com- 
mercial purposes  which  he  then  had  immediately  in  view,  without  caring 
for  the  matter  of  sovereignty  in  any  way — without  meaning  to  claim  it, 
either  for  himself  or  his  associates,  or  for  h\n  government — or  perhaps  re- 
serving to  himself  and  his  associates  the  ultimata  right  to  dispose  of  the  so- 
vereignty, whenever  they  should  find  the  exercise  of  sovereign  power  ne- 
cessary to  their  purposes,  as  they  might  then  see  best — of  assuming  it  them- 
selves, offering  it  to  their  own  government,  or  to   ny  other.     Had  he  not  a 
moral  right  to  place  himself  in  such  a  situation  1     Can  any  good  reason  be 
given  against  such  a  right  7  Is  there  any  principal  of  the  law  of  nations  or  of 
international  policy  that  forbids  a  mau  to  claim  itT     Is  it  forbidden  by  any 
rule  or  principle  of  our  own  municipallaw?     We  know  of  no  such  principle 
in  either  code,  and  can  iinigioe  none.      It  is  a  part  of  the  natural  liberty  of 
every  man — the  liberty  which  his  Maker  has  given  him,  to  act  as  he  may 
see  best  under  any  given  circumstances,  so  long  as  he  does  not  violate,  and 
does  nothing  that  tends  to  violate  any  of  the  commands  of  his  Maker,  ex- 
press or  implied ;  the  laws  of  his  country  or  the  laws  of  nations — nothing 
that  injures,  or  tends  to  injure  his  fellow  men.      And  does  the  exercise   of 
the  right  in  question  involve  any  such  violation,  or  tendency  to  violate,  any 
such  injury  or  tendency  to  injure  7      We  can  perceivu  none — we  assume 
that  there  is  none ;    we  also  assuoae  tho  existence  of  the  right.       Is  it  not 
clear  then  that  no  sovereignty  was  established  by  the  formation  of  the  set- 
tlements in  question  7     And  what  then  becomes  of  the  claim  of  the  United 
States  to  the  sovereignty  of  these  settlements  while  they  remained  in  the 
bands  of  Mr.  Astor  7     It  has  no  existence,  nor  ever  had,  but  in  the  imagi- 
nation of  our  public  men. 

The  principle  that  a  pr  vate  adventurer,  by  settling  in  an  uninhabited 
country,  sets  up  in  that  country,  the  sovereignty  of  his  own  government,  is 
entirely  too  loose  and  indefinite,  and  moreover  destitute  of  all  reason,  to  be 


%. 


i^ 


.ip^ 


34 

B  principle  of  law.  Courts  of  law  have  never,  wo  boliovo,  sanctioned  sucb 
aprinciplo,  and  wo  have  no  idea  that  thoy  ever  would.  Thoso  who  aasert 
such  a  priiiciple.  are  bouud  to  give  a  reason  fjr  it.  Thoy  have  no  right  to 
take  it  for  granted,  as  it  has  been  taken  fur  granted  in  this  case,  by  onr  pres- 
ent Secretary  at  least,  if  not  by  other  men  in  office.  But  no  reason  can  be 
given  for  it,  and  that  is  decisive  against  iho  principle— that  shows  it  not  to 
bo  law.  There  is  no  need  of  any  such  rule,  and  therefore  there  is  no  suc'l 
rule. 

If  Mr.  A9torhad  been  interrupted  in  this  proceeding  by  any  foreign  go- 
verninjnt  at  peace  with  our  own,  and  had  applied  to  our  government  for 
protection,  doubtless  the  government  would  have  hid  n  ri^'lit  to  iillbrd  him 
that  protection  ;  but  this  would  have  been  upon  the  principle  that  every  go- 
vernraont  has  a  right  to  protect  its  citizens  or  f  u')J3cts.  wherever  ihey  may 
be,  the  world  over,  from  wrongs  offered  to  them  by  other  i'ovi.'rnmeuts ;  and 
not  upon  th3  principle  that  the  sovereignty  of  the  country  extended  to  bis 
nettlements;  nor  would  such  an  application  and  compliiinco  therewith,  have 
necessarily  wrought  such  an  extension.     It  would  not  have  been  nocssari- 

ly  an  act  of  submisiioa  lo  the  sovereignty  of  our  [rovfrnment,  such  as  to 
make  his  settlemsnts  an  integral  part  of  our  country.  Nothing  but  the  ex- 
press concurrence  of  both  the  government  and  Mr.  Astor,  or  some  clear  im- 
plication of  a  mutual  intention  of  that  itind,  could  have  wrought  that  effect. 
Whether  the  government  would  havo  been  bound  to  grant  such  protection, 
would  hjve  dapsoded  perhaps  on  the  circumstances  of  the  case,  viz,  wheth- 
er the  supposed  wrong  was  offered  to  his  person,  or  personal  property,  or 
to  his  fixed  possessions.  And  whether  the  government  would  not  in  any 
case  havo  had  a  right  to  require  as  a  condition  of  their  interference,  that  he 
should  expressly  acknowledge  their  sovereignly  over  his  settlements,  is  a 
question  which  wo  shall  nut  particularly  enquire  into,  us  it  has  nothing  to 
do  wtfi our  subject,  so  far  as  we  can,  at  present,  see;  though  we  ratlier 
think  they  would ;  at  least,  in  tho  case  of  a  wrong  offered,  and  protection 
applied  for,  to  such  (ited  poisassious— to  his  right  of  soil— '.f  not  in  the  othe 
case. 

Having  shown  afBrmitively  the  existence  of  such  a  right,  we  will  now, 
ia  a  few  words,  show  it  negatively,  viz  :  by  supposing  its  non-existence,  and 
pointing  out  the  result  to  which  that  supposition  will  lead.  And  hero  wo 
observe  first,  that  if  a  man  cannot  thus  go  and  establish  himself  in  an  unin- 
habited country,  without  carrying  along  with  him  the  sovereignty  of  hia 
government,  he  must  remain  subject  to  the  jurisdiction  of  that  government 
and  under  his  allegiance  to  his  country  in  his  new  abode,  even  ulihough  that 
goverameat  may  be  unable,  either  from  waut  of  power,  or  from  the   re- 


evea  uli hough  that 
,  ur  from  the   re- 


mutencte,  or  iuacccstibility  oi  bia  situation,  to  afford  him  the  protection 
which  he  has  an  unconditioual  and  unquestionable  right,  in  that  case,  to 
claim.  Of  course,  he  cannot  erect  a  government  of  his  own,  whatever  may 
be  his  means  of  supporiiug  it ;  and  he  must  live  without  any  government, 
without  any  laws,  or  organized  moans  of  defence,  however  necessary  he 
may  ultimately  find  them,  and  however  willing  bis  associates,  for  such  he 
must  of  course  have,  may  be  to  unite  with  him  ia  such  arrangements.  This, 
we  submit,  is  absurd. 

Again,  if  one  man  with  a  few  associates  cannot  do  tliis,  it  is  obvious  that 
any  number  of  men  cannot  do  it-^a  thoasand,  or  a  hundred  thousand,  or  a 
million  ;  and  that  if  half  the  population  of  the  United  States  or  evon  more, 
should  now  go  in  a  body  to  tho  Oregon  territory,  they  could  not  establish   * 
their  own  government  and  make  their  own  laws,  in  that  country,  but  must 
be  subject  to  the  sovereignty  of  the  United  States.    This  is  another  and 
greater  absurdity      Theee  instances,  we  think,   are  enough — but  we  will 
add  anoiher.    If  an  equal  number  of  privats  adventurers  oi  two  different 
nations  should  establish  u  colony  in  such  a  country,  thay  would  carry  along 
with  them,  upon  the  priuciple  we  contend  against,  tho  sovereignties  of  their 
respective  governments,  and  there  would  then  be  two  separate  and  distinct 
Bovereigtities — and  there  might  as  well  be  a  dozen  or  any  indefinite  number 
— existing  at  tho  samo  time,  in  the  same  tertitory,  and  upon  the  very  same 
spot;  and  thia  would  bo  tho  climax  of  absurdity.    We  might  illustrate  the 
bubject  still  further,  but  we  forbear. 

It  is  clear  thon,  that  if  Mr.  Astor  went  to  that  country  without  any  specific 
intcutions  as  to  tho  future  sovereignty  of  his  settlements,  he  did  not  carry 
with  him  the  sovcrcigrily  of  his  country,  at  least,  for  any  territorial  purpose 
and  if  ho  went  with  tho  intention  of  ultimately  establishing  for  himseli  and 
kis  associates  a  separate  government,  tho  case  is  still  clearer,  or,  at  any  rate, 
equally  clear.  But  suppose  he  had  the  intention  of  establishing  a  colony 
in  behalf  of  the  United  States  ;  that  intention  availed  nothing,  so  long  as  it 
was  not  made  known  to  his  government  and  sanctioned  to  that  government 
— so  long  as  ho  wa3  not  clothed  with  any  public  authority. 

But  wo  are  tuUl  that  tho  soUlemont  at  Astoria  having  passed  into  the 
hands  of  iho  British  Government  during  the  late  war,  was  surrendered  to 
tho  government  of  the  Uiiitod  States  in  1313,  whereby,  aa  wo  are  in  sub 
stance  further  told,  tho  sovereignty  of  tho  United  States  was  estsbllibed  ove 
tho  settlement  and  drew  to  it  the  sovereignty  of  the  whole  Oregon  territo 
ry  ;  or,  at  least,  of  tlio  whole  valley  of  tho  Columbia  river ;  and  an  attempt 
has  been  mado  to  ciifurco  this  view  of  the  subject,  by  referring  to  a  remark 
which,  Mr.  Hush  soys,  Lord  Casllercagh,  about  that  time,  mado  to  him,  viz 


* 


36 


that  the  United  Statei  were  to  be  coniidered  the  party  in  poMeaiion,  pend 
ing  the  negotiations  about  the  title. 

Onthia,  we  observe  first,  that  the  effect  imputed  to  tbia  transaction  ia 
grossly  exaggerated-that  this  view  of  it  assigns  to  the  doctrine  of  con- 
Btractive  possession  and  constructive  sovereignty,  a  most  extravagant  lati- 
tude, such  as  no  court  of  law  could  sanction:  and  secondly,  that  Lord  Cas- 
tlere'agh's  remark  manifestly  referred  to  the  settlement  at  Astoria,  and  per. 
haps  the  poBta  on  the  upper  part  of  the  river,  if  they  were  still  in  existence, 
—if  they  had  also  been  captured  and  were  comprehended  in  the  arrange- 
ment for  restoration— not  to  the  whole  Oregon  territory,  or  even  the  whole 
•Valley  of  the  Columbia.    Nothing  but  a  clear,  explicit  declaration  of  such  an 
intention,  and  that  under  his  own  hand,  could  warrant  such  a  construotion 
of  that  remark ;  and  even  such  a  declaration  would  not  have  been  binding 
on  his  government;  for  he,  as  a  mere  minister  of  State,  had  no  power  to 
make  such  an  arrangement.     No  nation  could  ho  justly  held  to  such  ar- 
rangement by  any  thipg  less  than  a  solemn  treaty.    A  public  man  cannot 
thus  give  away  the  rights  of  his  country. 

Thirdly,  wo  insist,  that  the  sovereignty  thus  acquired  by  the  United  States 
whatever  was  its  extent,  was  long  ago  ubandoned  by  relinquishing  the  set- 
tlements in  question.  The  country,  we  contend  thus  foil  back  into  its  for- 
mer unappropriated  condition ;  and  has  ever  since  remained  in  that  condi- 
tion, with  the  exception  of  such  parts  oi  it  as  were  then,  or  have  been  since 
occupied,  by  the  late  North  West,  and  now  Hudson's  Bay  Company,  and 
such  other  parts  as  have  recently  been  settled  by  emigrants  from  the  United 
States— and  these  emigrants,  be  it  observed,  have  no  m>>re  carried  with 
them  ihe  sovereignty  of  their  country,  than  did  Mr.  Astor  and  his  associates. 
They  havo,  in  fact,  established  a  separate  and  independent  government,  as 
they  had  a  full  right  to  do. 

The  result  then  is,  that  the  establishment  of  the  post  at  Astoria  and  the  in- 
cidents growing  out  of  that  transaction,  havo  not  given  to  the  United  States 
any  title  whatever,  either  to  the  boil  or  to  the  sovereignty  of  any  part  of  the 
Oregon  territory. 

We  proceed  then  to  consider  the  claim  of  the  United  States  under  the  Loui- 
riana  treaty.  This  claim  demands  but  a  brief  notice.  It  appears  to  rest  on 
nothing  better  than  the  vague  and  inadmissible  notion  of  contiguity  or  corUi' 
nutty,  as  our  public  men  have  been  pleased  to  express  it;  and  the  fact  that 
France  impliedly  set  up  a  claim  to  the  country  West  of  the  Rocky  Mountains, 
by  comprehending  it  within  the  limits  o£ Louisiana  as  laid  down  on  some  of 
her  maps.  These  grounds  of  title  are  both  so  exceedingly  feeble— so  insigni- 
ficant— that  they  are  hardly  worth  discussing. 


37 


pouetiion,  pend 


An  to  the  firiit,  thn  phrnitefl  "  conUguity"  and  "continuity  "  as  hero  applied, 
sound  strangely  enough  to  legal  oars.  They  are  most  unsatisfactory  phrasesi 
and  must,  we  think,  strike  with  a  feeling  of  disappointment,  at  their  utter, 
want  of  significance,  all  minds  accustomed  to  the  precision  of  thought  and  Ian 
guage  so  indispensable  in  forensic  discussions.  We  are  quite  sure  that  no 
lawyer  had  anything  to  do  with  the  contrivance  of  expressions  so  clu  itsy  and 
unmeaning,  as  <  the  right  of  continuity,'  or  '  the  right  of  contiguity.'  Phrases 
so  indefinite,  for  ought  we  know,  may  very  well  answer  the  purposes  of  diplo- 
matists in  discussing  the  general  afftiirs  of  nations ;  but  when  applied  to  a 
dry  legal  question  of  title,  as  the  present  is,  they  really  provoke  a  smile.^ 
*  The  right  of  continuity'  or  'contiguity'  indeed  I  Whoever  beard  of  auch 
a  thing  until  the  present  case  1  And  what  docs  it  mean  1  If  it  means  any- 
thing at  all,  it  moans  that  a  nation  has  a  right  to  claim  as  her  own,  any  unin- 
habited country,  which  lies  contiguous  to  her  own  boundary  lines— all  such 
country  as  she  can  comprehend  by  an  imaginary  continuation  of  those  lines 
to  any  indefiaite  extent,  whether  she  really  wants  it  or  not— whether  she  can 
use  it  or  no ;  and  no  matter  bow  much  it  may  be  wanted,  or  to  what  extent  it 
can  be  used  by  other  nations— that  she  has  a  right,  upon  no  better  plea  than 
the  simple  fact  of  mere  juxta-position,  to  prevent  the  rest  of  mankind  from 
obeying  the  primitive  command  of  their  Maker  <  to  multiply  and  replenish  the 
earth.'  The  proposition  refutes  itself.  And  what  authorities  are  referred  to 
in  support  of  this  new-fangled  absurdity  T  Is  any  reference  maue  to  writers 
on  the  law  of  nations,  or  the  moral  principles  on  which  that  law  is  founded, 
and  which  alonegivesjto  it  its  binding  elTect  ?  Not  at  all.  Oneofthese  prin. 
ciples,  and  that  which  has  the  highest  sanction  among  them  all  -the  com. 
mands  of  the  Almighty— we  have  just  cited,  and  that  principle  irrevocably 
condemns  the  presumptuous  arrogance  of  the  rule.  It  is  no  matter  what 
claims  have  been  set  up  in  ancient  Anglo-American  charters,  or  from  time  to 
time  put  forth,  in  the  same  or  other  shapes,  by  France  or  Spain,  in  reference 
to  the  country  beyond  the  Mississippi — along  its  line,  or  about  its  source,  or 
elsewhere — in  so  far  as  they  were  meant  to  affect  the  rights  of  other  nations, 
we  have  no  hesitation  in  denouncing  them,  one  and  all,  as  insolent,  and  all 
but  blasphemous  denials  of  the  high  perogative  of  God— a  perverse  and  wicked 
opposition,  or  attempt  at  opposition,  to  the  course  of  His  providence  in  filling 
up  the  world,  by  the  natural  expinsion  of  the  human  family,  and  thus  doing 
what  he  will  with  bis  own.  We  shail  not  trouble  ourselves  to  inquire  by 
whom  and  when  such  claims  have  been  set  up,  or  when  and  by  whom  thej 
have  been  admitted  or  acquiesced  in.  No  admission — no  acquiescence  of  the 
kind  can  bind  the  world  at  large  to  such  a  rule — can  constitute  a  precedent 
for  the  settlement  of  territorial  disputes  among  nations  in  cases  of  this  sort* 


38 


Such  claims,  we  hold,  had  no  binding  effect  as  precedents,  even  upoti  the  per. 
tics  who  set  them  up,  not  even  in  their  own  day— no  longer,  at  least,  than 
while  they  were  persisted  in.  Most  assuredly  they  are  not  binding  upon  thei^ 
Buccessors.  One  generation  cannot  in  this  way  bind  another.  If  all  the  false 
principles,  which  the  different  nations  of  the  earth  have  frcni  time  to  time  set 
up,  and  acted  on  or  acquiesced  in,  are  to  be  considered  as  binding  upon  the 
respective  nations,  by  whom  they  have  been  severally  urged,  tacitly  admitted 
or  not  denied,  the  present  law  of  nations  will  soon  become  an  obsolete  code 
The  grave  question  we  are  new  discussing,  is  not  to  be  settled  by  such  prcce. 
dents — it  is  not  to  be,  even  in  the  slightest  degree,  affected  by  considerations  so- 
frivclous.  The  parties  may  see  fit  perhaps  to  regard  proximity  of  situation  as 
worth  attending  to  on  the  score  of  mutual  convenience  in  the  adjustment  of 
boundary  lines.  But  there  is  no  other  point  of  view  in  which  the  doctrine  con- 
veyed by  the  novel  phraseology  above  quoted — the  bungling  invention  of  our 
own  diplomatists,  possesses  the  least  importance,  or  has  indeed  any  real  mean- 
ing. 

After  the  foregoing  remarks,  we  think  it  superfluous  to  say  anything  on 
the  subject  of  the  French  maps  of  Louisiana,  except  to  observe  that  of  all  the 
lEoonthine  arguments  which  have  been  urged  in  this  case  c;i  Ithalfof  the 
United  States,  it  is  the  silliest  and  the  weakest. 

We  have  now  examined  all  (he  arguments  which  have  ever  been  brcught 
forward  by  our  pvblic  men  in  support  of  the  exclusive  claim  of  the  United 
States  to  the  Cregcn  territory.  The  result  is,  that  there  exists  no  rational 
foundation  forany  such  claim,  either  to  the  whole  or  any  part  of  that  country ; 
and  we  do  not  coincide  in  the  opinion  so  generally  expressed  ujrn  the  ap- 
pearance of  the  ccrrespondencc  lately  published,  viz.  that  the  qucsticn  on  our 
side  is,  at  any  rate,  ably  argued  in  that  correspondence.  Cn  the  contraiy, 
we  can  hardly  remember  that  we  ever  had  occasion  to  pcru>e  an  argument 
upon  any  forensic  questien,  so  ill-constructed,  immethcdical  and  inconsistent 
—60  illogical,  so  thoroughly  feeble  and  inccnclusivr,  as  we  have  found  the 
argument  on  V.half  of  the  United  States  in  that  correspondence  to  be.  Nor 
can  we  say  that  it  has  been  as  well  argued  as  we  think  it  might  have  been, 
on  the  other  side ;  but  how  far  the  British  Plenipotentiary  may  have  been 
restrained  by  his  instructionK,  and  what  may  be  the  motive  of  such  instruc- 
tions, from  bringing  out  the  full  strength  of  his  case,  by  going  into  the  ques- 
tion at  large,  we  of  course  cannot  determine. 

That  he  has  not  done  so  however  is,  we  ihink,  perfectly  apparent.  But  be 
it  as  it  may  wiih  regaid  to  that  side  cf  ihe  question,  not  a  single  aigument 
hasixen  urged  on  our  side,  which  has  any  thing  to  sujiain  it  better  than 
ome  rague  generality  obviously  taken  for  granted,  or  some  loose  and  evi« 


39 


1  upoii  the  per. 
,  at  least,  than 
ling  upon  theiy 
I  fall  the  false 
time  to  time  set 
nding  upon  the 
tacitly  admitted 
I  obsolete  code 

I  by  such  prece. 
isiderations  so- 
'  of  situation  as 
'■  adjustment  of 
le  doctrine  con- 
nvmtionofour 
iny  real  mean- 
ay  anything  on 
e  that  of  all  the 

II  Lchalf  of  the 

r  brcn  brought 
1  of  the  United 
iEts  no  rational 
)f  that  country ; 
d  Ujcn  the  op- 
lucsticn  on  our 
\  the  contrary, 
c  an  argument 
nd  inccn&istcnt 
bave  found  the 
ice  to  Le.  Nor 
ight  have  been, 
may  have  been 
f  such  instruc- 
;  into  the  quci- 

parent.  But  be 
Dgie  aigument 
D  it  belief  than 
looee  and  evi> 


dently  equi7ocal  precedent,  the  force  of  which  in  either  case  is  utterly  de  5 
stroyed  the  moment  it  is  subjected  to  the  unerring  tes:  of  first  principles.— 
Indeed  it  has  been  the  misforiune  of  our  country  in  this  dispute  from  its 
commencement,  that  our  diplomatists,  instead  of  recurring  to  first  principles 
for  thesoluiion  of  the  question,  have  always  sought  such  solution  by  means 
which,  in  reality,  have  liille  or  no  relation  to  the  end  ;  such  for  ins'lance  as 
the  collection  and  collation  ol  accounts  of  ancienc  voyages,  many  of  them  to 
be  (ound  only  in  musty  manuscripts,  curious  and  interesting  enough,  no 
doubt,  either  as  relics  of  former  limes,  or  for  the  particulars  which  they  nar- 
lale,  or  the  speculations  they  suggest— valuable  indeed  in  the  eyes  of  an 
aniiqaarlan — but  which  lapse  of  time,  subsequent  occurrence.",  and  the  mo- 
ral reasons  ot  the  law  of  nations,  have  long  since  deprived  of  any  practical 
importance  ;  even  if  we  suppose  that  they  can  in  all  cases  be  thoroughly 
relied  upon,  which  they  cannot.    No  man  with  such  materials  can  possibly 
construct  an  argument  upon  the  question,  deserving  of  the  name;  and  the 
sooner  all  such  materials,  and  the  narrow  views  arising  otit  of  them,  are 
discarded,  th«  better.    When  this  is  done,  and  not  till  then,  we  shall  have 
advanced  one  stt  p  towards  an  arrangement  of  this  dispute  upon  the  true 
principles  applicable  to  the  subject.    It  is  not  an  antiquarian  question,  such 
as  it  appears  to  be  in  the  eyes  of  mere  scientific  men  like  Humboldt— it  is 
a  mere  dry  question  of  law  of  our  own  times,  analogous  to  many  which  are 
frequently  discussed  and  disposed  of,  with  little  trouble,  in  our  tribunals  of 
justice.    In  such  a  forum,  a  question  of  this  kind  occurring  between  indi- 
viduals woiMd  be  soon  settled;  and  a  private  controversy,  of  which  out 
courts  would  take  cognizance,  may  easily  be  imagined,  involving  this  very 
question.    But  it  will  be  asi^el,  if  the  United  States  have  no  exclusive  title 
to  (hat  country  or  any  part  ot  it,  what  then  is  their  title  1    Does  it  follow 
hat  they  have  none  at  all  1    Most  certainly  not.    Their  title  is  the  same 
title  which  all  nations  have  to  it,  ex'.:ept{ng  only  such  nations  as  may  have 
relinquished  their  claims,  viz:  a  right  to  occupy  at  any  time  such  parts  of 
the  country  as  may  not  at  such  time  be  already  occupied,  subject,  however, 
as  bstween  ourselves  and  England,  to  the  restrictions  imposed  by  the  con. 
mentions  of  1318  and  1837,  and  with  all  the  advantages,  if  any,  which  those 
instruments  confer. 


IVO.  TIL-TmiB  COIVTBNTIOIVg  OP  1818  AND  189r. 

t 

Having  shown,  as  we  thing,  most  clearly,  that  the  United  States  have 
not,  nor  ever  had,  any  exclusive  title,  either  to  the  whole  Oregon  territory 
ot  any  part  ot  it— that  they  bave  no  other  title  than  the  right  which  they 


40 

'possess  in  common  with  all  the  other  nations  of  the  earth,  to  occupy,  at  any- 
time, any  unoccupied  parts  of  the  country,  we  shall  next  consider  as  britfly 
as  possible,  the  effect  of  the  conventions  ol  1818  and  1827. 

The  first  effect  of  the  convention  of  1818  we  have  already  pointed  out- 
viz.,  that  it  involves  a  most  unequivocal  denial  and  condemnation  of  the 
Spanish  title,  by  the  United  States  themselves,  before  that  tide  was  ac- 
quired; and  the  like  denial  and  condemnation  is  again  involved  in  the  con- 
vention of  1827,  alter  the  acquiailion  of  that  title.  Enough,  we  believe,  has 
been  already  said  to  show  that  this  is  so;  and  we  shall  say  no  more  upon 
the  subject,  at  least  for  the  present.  We  consider,  indeed,  that  this  efi  eci  is 
so  perfectly  obvious,  that  it  would  have  been  quite  sufficient  to  state  the 
point  as  a  self-evident  proposition,  without  taking  the  trouble  to  argue  it  at 
all,  as  we  have  briefly  done — that  even  the  few  words  we  have  said  in  sup- 
port of  this  view  of  the  case,  might  well  have  been  spared — that  they  are 
entirely  quperfliuous. 

We  proceed  then  to  remark  further,  that  ihe  convention  of  1818  also  in. 
Tolvesan  admission  by  the  United  States,  that  their  exclusive  claim  was 
considered  by  themselves  to  be  doubtful  on  all  the  grounds  on  which  it  had 
then  been  urged ;  for  if  it  was  not  so  considered,  why  was  it  nut  insisted 
on  at  the  time  1  If  onr  government  then  regarded  our  title  as  'clear  and 
anquestionable,'  why  did  they  concede  to  England  a  right  to  use  the  coun< 
try  in  common  with  ourselves,  for  the  term  of  ten  years  1  Why  admit  her 
to  share  the  country  with  us,  for  any  period  however  short,  or  for  any  pur* 
pose  however  insignificant,  without  stipulating,  as  we  did  not,  for  any 
ffqi7ivalent1  Do  individuals  ever  deal  thus  with  property— houses  or  lands 
or  any  thing  else — to  which  they  claim  an  exclusive  t.tle,  believing  that 
title  to  be  '  clear  and  unquestionable'  7  We  have  never  heard  of  such  a  case 
■nd  cannot  imagine  that  any  prudent  man— that  any  man,  who  was  not,  in 
tact,  a  simpleton — would  act  thus.  Such  an  arrangement  most  manifestly 
precludes  the  idea  of  a  clear  and  unquestionable  exclusive  right  in  either 
party ;  and  it  is  not  worth  while  to  dwell  upou  the  point.  Those  who  dis. 
put?  this,  will  dispute  anything ;  it  is  of  no  use  to  reason  vith  such  men 
The  common  sense  of  the  world  will  decide  against  them— it  has,  in  fact 
•0  decided  already;  tor  the  government  has  been  told  a  thousand  times,  both 
in  and  out  of  Congress— they  are  told  it  every  day  by  the  press,  as  well  of 
our  own  country  as  of  other  countries— and  the  remark  is  in  every  one's 
moiitb,  that  this  conventiont  implies,  that  those  who  signed  and  ratified  it  on 
the  part  of  theUnitcd  Slates,  doubted  the  validity  of  our  exclusive  claim. 
This  donbt,  which  of  course  is  also  implied  in  the  convention  of  1827,  the 
United  States  are  bound  to  remove,  be.'bre  they  again  set  up  the  claim.  The 


0  occupy,  at  any 
nsider  as  brufly 

riy  pointed  out- 

mnalion  of  the 

liat  tiile  was  ac- 

lived  inthecoD- 

we  believe,  has 

r  no  more  upon 

hat  ihis  efiectia 

ienl  lo  state  the 

>le  to  argue  it  at 

ave  said  in  8up> 

1 — that  they  are 

of  1818  also  in. 
iisive  claim  was 
on  which  it  had 
IS  it  nut  insisted 
r  as  '  clear  and 
to  use  the  coun- 
Why  admit  her 
t,  or  for  any  pur> 
lid  not,  for  any 
-houses  or  lands 
i,  believing  that 
rd  of  such  a  case 
who  was  not,  in 
most  manifestly 
ve  right  in  either 
Those  who  dis. 
1  v'ith  such  men 
—it  has,  in  (act 
sand  times,  both 
press,  as  well  of 
i  in  every  one's 
and  ratified  it  on 
exclusive  claim, 
ion  of  1827, the 
I  the  claim.  The 


41 

bardea  of  proof  obviously  lies  upon  our  government.    And  how  are  they 
to  remcre  this  doubt  1    Have  they  any  fresh  proofs  to  bring  forward  whi.'b 
were  not  brought  forward  in  1818]    Any  new  argunaeats  to  urge,  that  were 
not  then  urged  1    None  nt  all,  except  those  arising  out  of  the  Spanish  title, 
which  title,  as  already  observed,  this  very  convention  clearly  coidemned 
before  it  wai  acquired,  and  the  coaventiunof  1927,  again  condemned  itaf- 
ter  it  was  acquired.    To  remove  this  doubt,  then,  is  totally  out  of  their 
power;  and  of  course  our  government  cannot  again  assert  that,  their  claim 
is  'clear  and  unquestionable;'  for  that  would  be  to  contradict  themselves — 
to  contradict,  now  or  hereafter,  what  they  impliedly  admitted  in  1818  and 
1827.    They  have  th  -n  altogether  precluded  themselves  from  ever  eetling 
np  that  claim;  and  the  conventions  of  1818  and  1827  together  constitute  a 
practical  abandonment  of  the  claim — the  former  indeed  alone  had  that  effect* 
and  the  latter  confirmed  such  abandnnnient,    It  will  avail  nothing  to  refer 
to  that  clause  in  the  conventio  nof  1818  which  declareii  that  the  instrument 
shall  not  be  construed  to  prejudice  any  claim  which  either  party  may  have 
to  the  disputed  territory.  The  convention,  nor  withstanding  this  clause,  must 
be  construed  to  be  a  mutual  admission  that  neither  party  had  any  exclusive 
title  to  the  country  or  any  part  of  it ;  such  a  construction  results  from  the 
very  nature  ot  things — if  is  inevitable ;  and  so  far  as  that  clause  was  intend- 
ed to  repel  such  construction,  it  is  nugatory,  if  it  was,  in  fact,  so  intended ; 
which,  we  think,  it  clearly  was  not.     W^e  think  it  was  intended  for  another 
purpose*  viz,  to  keep  the  question  open  for  further  discussion  upon  any 
new  merit  which  either  party  might  be  able  to  show,  so  long  as  the  conven- 
tion should  last;  perhaps  also  tor  some  other  purpose  or  purposes,  not  ma- 
terial to  be  pointed  out  at  present,  and  not  for  the  purpose  of  keeping  it  open 
for  discussion  upon  merits  so  far  as  such  merits  had  then  been  disclosed  on 
either  side  and  already  debated.    To  assign  this  meaning  to  the  clause- 
to  give  it  the  sense  which  we  have  given  it— is  to  give  it  meaning  and  sense 
sufficient.    There  is  no  need  to  go  further  and  contend  that  the  clause  was 
meant  to  preclude  the  inference  naturally  and  irresistibly  flowing  fromthe 
previous  clause,  providing  for  the  joint  use  of  the  country  for  ten  years  by 
both  parlies,  viz,  that  neither  party  had  any  exclusive  right,  either  to  the 
whole  country  or  lo  any  part  of  it.    To  impute  to  it  such  a  meaning,  is,  la 
effect,  to  place  it  in  collision  with  the  previous  clausej  and  it  is  a  familiar 
principle  with  respect  to  the  construction  of  written  instruments,  that  all  the 
different  clauses  they  contain,  are  to  be  so  construed,  when  they  can  be,  as 
to  avoid  such  collisions.    But  it  can  be  avoided  in  this  case,  as  we  have 
just  shown,  and  therefore  It  should  be;  and  the  constraciion  which  we  con- 
tend agaioit,  is  consequently  inadmissible.    It  is  also  inadmissible  on  ano- 


42 


ther  principle,  viz,  that  when  a  collision  necessarilr  takes  place  between  a 
primary  or  leading  clause  in  a  written  instrument,  and  a  secondary  or  sub* 
ordinals  clause,  the  latter  mu-t  give  way— that  the  less  must  yield  to  the 
greater— that  the  thing  which  is  least  important,  must  give  place  to  that 
irhich  is  most  important.  Thus  it  A  in  a  written  contract,  Acknowledges 
bimselt  to  be  indebted  to  Bin  the  sum  o<  $100,  lor  money  lent  or  goods  sold 
and  delivered,  and  this  is  followed  by  a  proviso  thai  the  contract  shall  not 
be  considered  or  construed  to  be  an  admission  of  a  debt,  this  proviso  is  per- 
fectly nugatory,  because  of  iis  repugnance  to  the  previous  leading  clause 
to  which  it  is  subordinate.  Here  a  collision  is  inevitable.  There  is  no  such 
thing  as  construing  this  contract  in  such  a  way  that  both  clauses  can  be  ef« 
fectual.  One  or  the  other  must  necessarily  give  way ;  and  it  should  be,  of 
cour&e,  the  subordinate  clause.  To  decide  otherwise  would  be  to  say,  that 
the  greater  must  give  place  to  the  less.  Possibly  a  Court  of  law  might  re* 
gard  such  a  contract  as  frivolous,  and,  on  that  ground,  altogether  refuse  to 
V  take  cognizance  of  il ;  which  would,  in  effect,  be  to  declare  it  void ;  but  if 
they  should  take  cognizance  of  it,  their  decision  would  be  as  we  have  «a« 
ted.  Yet  whether  they  would  take  cognizance  of  such  a  contract  or  not— 
and  suppose  they  should  declare  it  void,  yet  any  iran  reading  it  would  not 
hesitate  to  say,  that  the  contract  contained  a  clear  admission  of  the  existence 
of  a  debt,  and  that  the  refusal  to  pay  that  debt,  was  a  palpable  breach  of 
moral  obligation.  And  just  so  in  this  case.  The  United  States  impliedly 
adffii  ted  in  1818  the  doubtfulness  of  their  exclusive  claim,  by  then  agreeing 
to  suspend  that  claim  for  the  tei^m  of  ten  years;  and  they  again  admitted 
this  in  1827,  by  then  agreeing  to  extend  that  suspension  indefinitely,  subjec^ 
only  to  the  condition,  that  it  might  at  any  time  be  terminated  by  a  twelve 
months  notice.  Who  will  not  say;  that  this,  in  spite  of  any  claase  to  the 
contrary,  does  involve  a  distinct  admission  of  the  doabtfulness  of  their  ex* 
elusive  claim  1  It  is  impossible,  by  any  contrivance  or  subtlety  v?haterer» 
to  evade  this  inference.  It  is  an  inference  which  the  mind  will  make— 
irhich  it  will  not  suffer  itself  to  be  restrained  from  making,  by  any  derieed 
The  clause  in  question  then  does  not  help  the  case ;  and  the  United  States, 
by  agreeing  to  suspend  their  exclusive  claim,  have  practically  abandone. 
that  claim.  This  would  undoubtedly  be  the  judgment  of  a  Court  of  larr 
at  equity,  in  a  similar  case  between  individuals.  Thus,  suppose  that  A 
claftns  a:i  exclusive  title  to  a  certain  tract  of  wild  land,  end  B  claims  an 
eqaalofldividedmoietyof  the  same  tract,  but  neither  party  can  show  any 
thle,  and  they  enter  into  an  agreement  for  the  joint  ase  of  the  premises  for 
*  tea  years  by  both  parties— with  a  claase  in  the  agreement,  that  it  shall  not 
v«eoM  trued  to  the  prejudice  of  any  claim  that  ehber  party  may  have  t<^ 


43 


place  between  a 

ecoDdary  or  sub* 

lust  yield  to  the 

ve  place  (o  that 

:t,  Acknowledges 

ent  or  goods  sold 

oniract  sball  not 

is  proviso  is  per. 

s  leading  clause 

There  is  no  such 

lauses  can  be  ef« 

1  it  should  be,  of 

Id  be  tc  say,  that 

of  law  might  re* 

ogether  refuse  to 

e  it  void ;  but  if 

as  we  havema* 

contract  or  uot-^ 

ling  it  would  not 

>n  of  the  existence 

ilpable  breach  of 

1  Slates  impliedljr 

,  by  then  agreeing 

|r  again  admitted 

lefinitely,  f«abjec^ 

ated  by  a  twelve 

ny  elaase  to  the 

ilness  of  their  ex* 

iibtlety  whateveri 

ind  will  malce — 

f,  by  any  deviced 

he  United  Slates, 

ically  abindone. 

f  a.  Court  of  lav 

,  sappose  that  A 

i:nd  B  claims  an 

ty  can  show  any 

the  premises  for 

,  that  it  shall  not 

rty  nay  have  t(^ 


the  premises.  At  (he  end  of  ten  years,  the  dispute  h  renewed,  whereopoD 
B  flies  his  bill  in  a  court  uf  equity  for  a  partition,  setting  lorth  the  claims  of 
the  respective  parties,  together  wiihth*^  agreement,-'claiming  that  the  agree* 
ment  has  raised  a  presumption  of  a  tenancy  in  common,  and  praying  a  de- 
cree  accorjingly.  A.  in  his  answer,  admits  the  facts  set  forth  in  the  bill, 
jucluding  the  agreement,  but  denies  the  presumption  insisted  on  by  B,  and 
in  turn  insists  that  such  presntrption  is  repelled  by  (he  saving  clause.  This 
defence,  we  are  clearly  of  opinion,  would  be  overruled.  A  partition  would 
be  decreed,  we  think,  without  any  doubt,  upon  the  principle  that  the  agree* 
meni  presented  on  its  face  a  clear  presumptive  case  of  a  tenancy  in  com* 
mon  in  equal  moieties,  at  least  as  between  A  and  B,  and  was  a  praclica* 
abandonment  by  A  of  his  exclusive  claim. 

The  case  supposed  is  precisely  analogous  in  principle  to  the  present  case 
except  that,  in  the  present  case,  the  evidence  in  favor  of  a  tenancy  in  com- 
mon does  not  consist  solely  of  the  agreement ;  tor  England  has  a  strong 
case  of  a  tenancy  in  common  or  joint-tenancy,  under  the  law  of  nations,  in 
dependently  of  the  subsisting  arrangement;  and  though  the  case  of  the  Uni*  ^ 
ted  States  is,  in  this  respect,  as  strong  as  that  of  England,  it  is  no  stronger. 
The  United  States  have  as  good  a  title  to  claim  a  tenancy  in  common  as 
England,  (except  that  England  has  actual  possession  of  seme  parts  of  the 
country,  while  the  United  States  possess  none  of  it,)  yet  they  have  no  bet- 
ter, and  hare  wholly  failed  to  show  an  exclusive  title.  The  convention 
then,  was  in  judgment  of  law  a  practical  abandonment  of  such  exclusive 
claim;  and  if  there  was  any  court  of  justice,  which  could  take  cognizance 
ot  the  casCi  and  armed  with  power  to  enforce  its  decisions,  the  United 
States  would  be  compelled  to  submit  to  a  partition  on  the  mere  strength  of  the 
present  arraiigement,  reserving  howerer  the  claims  of  other  nations.  Tbe 
United  States  are  therefore  bound  to  sabmit  to  such  a  partition  ;  and  wonld 
be  even  if  England  could  show  no  canse  for  it  but  the  conventions  of  1818 
and  18S7,  which  however  she  can  dof  for  she  can  show  cause  enough  in 
the  law  of  nations,  independently  of  these  conventions,  and  the  U.  States 
can  show  no  canse  to  the  contrary— and  on  the  other  hand,  in  every  at* 
tempt  to  show  such  cause,  they  do  bat  strengthen  the  case  of  England. 
They  do  but  show,  as  she  does,  a  case  of  tenancy  in  common  or  joint* 
tenancy— nothing  more.  They  are  then  bound— they  are  under  a  strong 
moral  obligation,  to  submit  to  a  partition.  They  are  holden  to  this  by  the 
law  of  nations,  and  they  are  impliedly  pledged  to  it  by  the  conventions  of 
1818  and  182?.  To  refuse  to  do  it,  is  an  implied  breach  of  moral  obliga- 
tion—of  the  law  of  nations;  and  of  those  implied  pledges— it  is  dishonorable 
There  is,  at  any  rate,  no  kind  of  faestion.  that  the  whole  dispute  should  be 


44 


I 


submilled  to  arbitration,  with  power  to  the  arbitrators  to  make  partition 
The  refusal  to  do  this  is  utterly  without  excuse— it  is  awilful  and  wanton 
abuse  and  perversion,  by  our  public  men,  of  the  authori'y  with  which  the 
country  has  intrusted  them. 

Although  we  have  spoken  of  the  title  ot  the  United  States  and  of  England 
10  the  Oregon  territory,  as  a  tenancy  in  common  or  joint-tenancy,  yet  we  do 
not  mean  to  assert  that  it  is  strictly  of  that  character  ;  for  the  possession  of 
one  joint-tenant  or  tenant  in  common,  is  in  judgment  of  law,  the  po  sess- 
ion  of  his  co-tenant,  unless  such  possession  is  expressly  taken  under  an 
exclusive  claim,  when  "t  amounts  to  a  dispossession  o(  such  co-tenant.  Not 
so  exactly,  in  the  present  case;  for  a  possession  talrea  by  one  of  the  parties 
will  not  inure  to  the  benefit  of  the  other— a  possession  taken  by  England 
—that  is  by  the  subjects  of  England,  under  her  authorit>,  is  not  the 
possession  of  the  United  States,  and  cannot  inure  to  their  benefit,  and  vice 
versa.  The  subjects  and  citizens  of  either  party  are  at  liberty,  under 
the  subsisting  arrangement,  so  far  as  concerns  the  mere  right  of  soil, 
and  60  far  as  concerns  other  nations,  to  occupy  any  part  of  the  country 

to  appropriate  such  part  to  their  own  exclusive  use— for  this  plain 

reason,  viz.,  that  they  had  that  right  before  the  convention  ot  1818 
and  the  continued  exercise  of  such  right  was  not  restrained  by  that 
convention,  either  expressly  or  by  implication.  The  convention  declares 
that  the  country  shall  remain  "  free  and  open  to  the.citizens  and  subjects  of 
both  parties  for  the  term  of  ten  years,"  &c.  How  free  and  open  1  Free 
and  open,  in  what  manner  and  for  what  purposes.  Why,  in  ail  ways  and 
for  all  the  purposes  for  which  "  citizens  and  subjects"  ever  go,  or  at  least 
usaally  go,  to  new  countries,  viz.,  to  hunt,  to  trade,  to  collect  furs  and  pel- 
tries, to  navigate  its  waters,  and  to  form  settlements  by  taking  up  and  ap 
propriating  lands,  to  their  own  ezclasive  use,  with  a  view  to  baild  open  and 
enliivate  them— which  latter  purpose  necessarily  includes  the  acquisition 
of  absoluts,  indefeasible  fee-simple  interests,  not  dependent  on  the  pleasore 
of  either  government — not  dependent  on  the  ultimate  sovereignty  of  the 
country.  For  such  purposes  the  country  might  be  left  free  and  open,  w  ith 
out  directly  or  necessarily  aflecting  the  ultimate  sovereignty ;  it  is  there 
fore  fair  to  presume  that  this  was  meant ;  and  if  this  was  not  meant— if  it 
was  not  meant  that  the  country  should  be  free  and  open  for  each  and  every 
of  these  purposes,  then  it  was  not  meant  that  the  country  should  be 
free  and  open  to  the  citizens  and  subjects  of  both  parties,  and  the  con« 
vention  is  then  made  to  utter  a  contradiction  ^.  for  a  country  in  which 
a  man  cannot  acquire  an  exclusive  property  to  land,  and  an  absolute 
dominion  over  it  in  reference  to  the  duration  of  his  estate,  i.  e.  a 


45 


}  make  partition 
ivilful  and  wanton 
'i'y  «rilh  which  the 

es  and  of  England 
tenancy,  yet  we  do 

the  possession  of 

law,  the  po  sess- 
y  taL-en  under  an 
[:h  co-tenant.  Not 

one  of  the  parties 
)ken  by  England 
orit>,  is  not  the 

benefit,  and  vice 
at  liberty,  under 
ere  right  of  soil, 
rt  of  the  country 
e— far  this  plain 
vent  ion   ot  1818 
strained  by  that 
Qvenilon  declares 
s  and  subjects  of 
ind  open  7    Free 
,  in  all  ways  and 
er  go,  or  at  least 
lect  furs  and  pel- 
iking  up  and  ap 
0  build  upon  and 

the  acquisition 

on  the  pleasure 
rereignty  of  the 

and  open,  with 
ignty ;  it  is  there 
not  meant— if  it 

each  and  every 
ntry  should  be 
!S,  and  the  con- 
intry  in  which 
ad  an  absolute 
is  estate,  i.  e.  a 


fee-simple  interest,  cannot  be  said  to  be  free  and  open  to  him.  It 
was,  therefore,  intended,  no  doubt,  that  for  the  exercise  of  private 
rights— for  the  acquisition  of  private  rights— for  the  acquisition  of  private 
property  in  land,  as  wtU  as  in  other  things,  the  country  should  be  free  and 
open  to  the  subjects  and  citizens  of  both  parties,  under  such  restrictions 
however,  as  either  party  might  see  fit  to  impose  on  its  own  citizens  or 
subjects ;  but  wiihout  any  power  in  eiher  tu  impose  any  restiictions  upon 
the  subjects  or  citizens  of  the  opposite  party,  or  bring  them  under  its  ju- 
risdiction, in  any  way.  That  right  neither  party  could  have  -  'thuut  pus^ 
sessing  the  power  to  exclude  altogether  the  subjects  or  citizen^  oi  the  other 
— a  power  which  the  convention,  by  declaring  that  the  country  should  be 
free  and  open  for  ten  years,  in  efTect  deniefl  tu  ooth  parties.  In  other 
words,  neither  party  can  exercise  exclusive  sovereignty  over  any  part  of  the 
country,  so  long  as  the  present  arrangement  subsists ;  but  their  respective 
citizens  and  subjects  may  occupy  lands  there,  either  under  or  without  any 
express  grant  or  charter  or  legislative  actof  their  respective  governmemsi 
to  the  exclusion  of  the  subjects  or  citizens  of  the  other  party  from  occupying 
^he  same  lands.  And  snch  exclusiv**  occupation  by  the  subjects  or  citizens 
of  the  one  party  can  never  inure  to  the  benefit  of  the  opposite  party — can- 
mot  be  considered  as  a  possess  on  by  such  opposite  party — can  never  be 
made  the  basis  of  any  claim  by  such  opposite  party  to  the  sov>;reigntv  over 
the  lands  so  occupied;  n  >t  even  after  the  termination  of  the  convention  • 
and  every  such  occupation,  every  settlement  m;  de  in  that  country,  must 
inure,  when  the  convention  shall  be  terminated,  to  the  benefit  of  the  party 
by  whose  aulhoriiv  it  was  made  ;  aud  if  not  made  under  the  authority  of 
either  party,  it  will  inure  to  the  benefit  of  neither. 

The  relation  ot  the  parties  tf.en,  is  not  exactly  a  joint  tenancy  or  tenancy 
in  common,  such  as  the  law  recognizes  between  individuals  ;  it  is  a  pecu> 
liar  species  of  joint  ownership,  such  as  cannot  be  conceived  of  as  existing 
between  individuals.  It  is  a  kind  of  relation  which  the  law,  or  at  least,  our 
own  municipal  law,  has  never  raised  between  individuals,  either  expressly 
or  by  implication,  and  cannot  raise,  because  the  idea  ot  mutual  sovereignty 
subjected  to  a  mutual  restriction  is  essential  to  it.  With  this  exception,  the 
relation  is  precisely  that  which  the  law  of  nations  had  previously  created 
between  the  parties— which  it  creates  between  all  nations  in  reference  to 
vninhabited  countries— and  it  seems  to  be  the  same  relation  which  was  cre- 
ated by  the  Nuotka  convention  between  England  and  Spain.  Either  parly 
may  do  any  thing  in  the  country  or  with  the  country,  and  their  respective 
eitizecB  or  subjects  may  do  any  thing,  which  does  not  involve  a  right  to 


46 


i 


exclude  ihe  ci'.izens  or  snbjecls  of  ilie  opposite  party,— a  right  ;o  close  the 
couniry  or  any  part  ol  it  against  them.  Even  colonies  may  be  planted  and 
reared  there,  so  far  as  that  can  be  done  under  this  restriction,  which 
though  a  material  impediment  in  the  way  ot  doing  it,  does  not  hinder  it 
allogeiher. 

The  principle  then  ol  the  convention  of  181S  and  1827,  so  far  as  w.  have 
yet  been  ab^e  to  discover,  is  precisely  identical  wiih  the  principle  of  the 
NootUa  convention.  I(  any  occasion  had  ever  aiisen  for  carrying  the  Noot- 
ka  convention  oul  into  practice,  the  results  would  have  b'.'en  precisely  the 
same  with  the  practical  results  ot  'he  convention  of  18IS.  Both  conven- 
tions are  merely  declaratory  of  the  law  of  nations  as  applied  to  th«N. 
W.  Coast  and  the  cortespondinif  interior  rounirv.  viz,  that  at  the  date  of 
thes'  conventions  respectively,  t'le  couiiiry  was  op?n  to  all  mankind— to 
ihe  frst  occupant— with  the  exception  of  snch  parts,  if  any,  as  were  already 
occupied— that  every  nation  on  earth  and  every  individual  of  the  human 
family  i>ad  a  right  to  occupy,  at  any  time,  any  unoccupied  parts  of  the 

country. 

From  the  foregoing  views  0/  the  subject,  the  following  results  are  clear- 
ly dediicible. 

Isr.  That  individuals  or  corporations  who  have  occupied  lands  in  that 
conniry  without  any  public  authority,  either  before  or  since  the  convention 
of  18IS,  have  acquired  an  unquestionable  right  to  hold  such  lands,  what 
ever  may  be  the  issue  ol  the  present  dispute;  subject,  however,  to  such  so- 
verelgnty  as  may  be  eventually  estaldished  over  those  parts  cf  the  countiy 
in  which  their  respective  possessions  are  severally  situated. 

As  to  the  question  what  may  be  considered  as  an  occupation  of  any  given 
tract  of  land,  or  portion  of  the  country;  or  what  specific  limits  any  particular 
individual,  or  corporation,  or  any  given  settlement,  may  claim,  that  must  de- 
pend much  on  the  special  circumstances  of  each  case ;  and  in  case  of  dispute , 
must  necessarily  be  the  subject  either  of  conventional  arrar.gcmenis,  or  ju- 
dicial decisions. 

We  can  only  say,  that,  without  doubt,  the  cidmants  will  have  a  right  to 
insist  on  a  liberal,  though  not  extravagant,  application  of  the  doctrine  of  con* 
■tructive  possession,  which  must  necessarily  extend  the  limits  of  each  claim 
considerably  beyond  the  ground  actually  occupied,  actually  built  upon,  inclos- 
ed or  cultivated  under  such  claim. 

3.  (t  results  from  the  foregoing  views,  that  when  lands  in  that  country 
have  been  actually  occupied  under  any  sovereign  grant,  or  charter,  or  legisla- 
tive act,  of  any  independent  government,  whicli  at  the  time  was  not  restrained 
by  any  treaty  from  the  full  exercise  of  sovereignty  there,  the  sovereignty  of 


BUcli  govci- 
such  purliui 
tion  of  the 
will  fairly 

Wo  presv 
pied  under 
had  over  ta 
any  nation, 
der  the  auti 
part  ol  the  ( 
States,  eith 
United  Sta 
mere  privat 
to  tho  bene 
of the  U. S 
until  their  ( 
over  gone  t 
There  i< 
a  most  imp 
viz.!  that  ill 
species  of  q 
of  the  Iludi 
legislation  1 
country,  w 
each  one  ol 
than  3S  or 
of  one  kiri 
t  hcsc,  as  SI 
scats  of  ab 
all  aituatrc 
hersiiC,  vii 
River;  an 
Btructive 
them  all  i 
Under  the 
one,  and 
Stat(.s  she 
immediate 
Tho  conv 
ti  ce  will  I 


fht  ;o  close  the 
be  planted  and 
Iciion,  which 
s  not  hinder  it 

far  ns  w?  have 
inciple  of  the 
yingihe  Nooi- 

precisely  the 
Both  conven- 
led  lo  thii  N. 
at   the  date  of 

mankind— to 
I  were  already 
>r  the  humaa 
I  parts  ot°  the 

ults  are  clear- 
lands  in  that 
he  convention 
I  lands,  what 
?r,  to  such  so- 
f  the  countiy 

I  of  any  given 
iny  particular 
that  must  de- 
ise  of  dispute, 
mcnts,  or  ju- 

ave  a  right  to 

>ctrinRofcon* 

of  each  claim 

upon,  incloi. 

that  country 
er,  or  legiila- 
tiot  restrained 
lovcreignty  of 


47 


such  gnvernincnt  has  been  fully  cstabiiithed  over  such  lands,  together  with 
such  porliuad  of  the  adjacent  country,  as  a  liberal  and  not  extravagant  applica- 
tion of  the  doctrine  of  constructive  possession  and  constructive  sovereignly, 
will  fairly  warrant  iho  party  in  claiming. 

VVc  presume  however,  that  no  lauds  in  that  country  have  ever  been  occu- 
pied under  such  circuiustances.  No  occupation  of  any  part  of  the  country 
had  over  taken  place  prior  to  the  Nootka  convention,  under  the  authority  of 
any  nation,  nor  has  any  such  occupation  ever  taken  place  since  that  date,  un- 
der the  authority  of  any  nation  except  England.  No  occupation  at  all  of  any 
part  of  the  country  has  ever  taken  place  under  the  authority  of  the  United 
States,  either  before  or  since  the  convention  of  1818.  All  the  citjzens  of  the 
United  States  who  have  gone  to  that  country,  have  gone  in  the  character  of 
mere  private  adventurers,  whose  possession  of  lands  there  has  not  yet  inured 
to  tho  bcnetit  of  the  United  States— has  not  yet  established  the  sovereignty 
of  the  U.  S.  over  the  lands  so  possessed,  even  in  a  qualified  form,  nor  will, 
until  their  Government  shall  have  adopted  their  acts.  And  they  have,  more- 
over  gone  there  since  the  convention  of  1S18  ;  but 

There  is  another  inference  deducible  from  the  foregoing  views,  which  has 
a  most  important  bearing  on  this  dispute,  as  we  will  now  proceed  to  explain 
viz.)' that  immediately  upon  tho  termination  of  the  present  arrangement,  the 
species  of  qualiflcd  sovereignty  which  England,  has  acquired  through  the  acts 
of  the  Hudson's  Buy  Company  (proceeding  under  its  charter  and  under  the 
legislation  of  the  L'nglish  Parliament)  over  sundry  detached  parts  of  the 
country,  will  be  at  once  converted  into  an  absolute  sovereignty,  at  least  over 
each  one  of  ihcjc  portions  separately.    These  amount,  we  believe,  to  no  les^ 
than  33  or  40,  for  so  many  different  posts,  factories,  settlements,  or  stations 
uf  one  kind  or  another,  this  Company  is  said  to  have  in  that  country ;  and 
these,  as  soon,  as  the  present  convention  is  ended,  will  all  be  just  so  many 
scats  of  absolute,  unqualifiid  Englinh  eovt-reignty.     But  they  are  all  or  nearly 
all  situated  in  that  part  of  tho  country  which  England  proposes  to  retain  to 
hersrii   \i/,.  North  of  the  4yih  parallel  and  North  and  Wcsi  of  the  Columbia 
River ;  and  the  spplicalion  of  the  durtrines  of  ront>lructive  possession  and  con- 
structive sovereignty  in  these  nuiiurous  rttablishmcnts,  will  in  effect  fuse 
them  ail  into  one  colony,  and  spread  her  sovrnignty  over  that  whole  region. 
Under  the  iriflucnre  of  this  doctrine,  those  settlements  will  all  coalesce  into 
one,  and  form  a  single  colony.     "What  then  would  be  the  effect,  if  the  U. 
StaUs  should  give  to  England  the  twelve  months'  notice  7     England  might 
immediately  waive  the  twelve  months'  notice,  for  she  has  a  right  to  waive  it. 
The  conventions  of  1818  and  1827  are  then  at  once  ended,  an4  thus  the  no- 
tice will  refiult  in  the  almost  immediate  establishment  of  her  sovereignty  ove' 


48 


that  part  of  the  country,  without  any  express  asBumption  of  such  sovereignty 
on  her  part ;  and  she  will  have  a  right  at  once  to  exclude  our  citizens  alto- 
gether from  that  part  of  the  country,  as  she  no  doubt  will  do.  The  United 
States  will  have  no  time  to  acquire  any  foothold  whatever  in  that  region 
England  will  claim,  and  rightfully,  to  be  the  first  occupant  of  that  part  of  the 
country,  and  of  course,  our  claim  to  it  will  bo  at  an  end.  She  has  done  and 
is  doing  too  much  to  that  pari  of  the  country  to  leave  us  any  room  for  contend- 
ng  that  she  has  neglected  it,  as  the  whole  country  was  neglected  by  Spain. 
We  cannot  complain  that  she  is  not  filling  it  up  with  people  as  fast  as  she 
might,  for  she  can  retort  upon  us  this  argument,  by  pointing  to  the  immense 
tracts  of  unoccupied  lands  within  our  undisputed  limits,  to  say  nothing  of  the 
country  beyond  the  Rocky  Mountains  South  of  the  49th  parallel  and  South 
and  East  of  the  Columbia,  which  in  any  event,  short  of  a  war,  she  will  proba< 
biy  be  willing  enough  to  leave  to  us. 

Such  a  proceeding  on  our  part,  viz.  the  giving  of  the  notice,  so  met  by  her, 
would  undoubtedly  have  the  effect  of  investing  her  with  the  sovereignty  of 
the  Columbia  River;  fur  her  subjects,  acting  under  her  authority,  have  had  the 
exclusive  use  of  the  waters  of  that  river  for  a  long  term  of  years,  with  the  ex- 
ception of  a  partial  enjoyment  of  the  river  by  private  adventurers  of  the  Uni. 
ted  States,  within  the  last  three  or  four  years ;  which  can  avail  nothing  to  th  e 
U.  States,  because  it  did  not  take  place  under  the  authority  of  our  government ; 
and  therefore  cannot  be  made  the  ground  of  a  national  claim. 

Now  suppose  that  England,  relying  on  the  doctrine  of  constructive  sover- 
eignty, should  take  the  course  above  suggested ;  or  suppose  that,  by  a  procla- 
mation or  act  of  Parliament,  having  first  terminated  the  treaty  at  once  by  waiv. 
ing  the  twelve  months,  she  should  declare  the  country.  North  of  the  49th  par- 
allel and  North  and  West  of  the  Colubibia  River,  subject  to  her  sovereignty; 
would  the  law  of  nations  warrant  the  United  States  in  doing  the  same  thing  1 
Most  clearly  not ;  for  the  United  States  are  not  in  possession  of  a  single  foot 
ef  the  country,  certainly  not  in  their  political  capacity.  That  would  be,  roost 
unequivocally,  an  aggressive  measure,  war  would  be  the  inevitable  result,  and 
our  government  would  unquestionably  be  wrong.  And  would  the  claim  of 
England  to  that  whole  region,  under  the  doctrine  of  constructive  sovereignty 
as  applied  to  her  settlements,  with  or  without  an  express  assumption  of  such 
sovereignty  by  proclamation  or  act  of  Parliament,  be  an  aggressive  measure  on 
her  part  1  We  are  clearly  of  opinion  that  it  would  not ;  for  the  truth  is,  and 
it  is  not  to  be  disguised,  that  England  has,  in  fact,  already  occupied  that  part 
of  the  country.  She  has  acquired  a  title  to  it  by  first  "c^upancy,  subject  only 
to  the  restrictions  of  the  conventions  of  1818  and  1827,  and  the  instant  these 
restrictions  are  lemoved,  her  title  will  be  complete,  at  least  as  against  the  Uni- 


49 


ch  sovereigntj 
r  cilizens  alto- 
,  Tho  United 
n  that  region 
hat  park  of  the 
has  done  and 
m  for  contend- 
cted  by  Spain. 
a«  fast  as  she 
to  the  immense 
nothing  of  the 
illel  and  South 
she  will  proba* 

so  met  bj  her, 
sovereignty  of 
y,  have  had  the 
s,  with  tho  ex- 
ers  of  the  Uni. 
nothing  to  th  e 
iir  government; 

itructive  sover- 
at,  by  a  procla- 
t  once  by  waiv- 
Df  the  49th  par- 
sr  sovereignty; 
le  same  thing  1 
of  a  single  foot 
would  be,  most 
able  result,  and 
Id  the  claim  of 
ive  sovereignty 
tnption  of  such 
ive  measure  on 
lie  truth  is,  and 
upied  that  part 
y,  subject  only 
le  instant  these 
luxiBt  the  Uni- 


ted States,  who  are  estopped  from  iaying  there  is  yet  too  much  of  the  country, 
lying  vacant  and  unappropriated.  They  are  themselves  the  holders  of  too 
much  land  of  that  description,  as  we  have  already  remarked,  to  tyko  this 
ground.  Upon  that  point  the  mouths  of  our  people  are  shut  for  at  least  half 
ofa  century  to  couio. 

But  suppose  no  notice  be  given  by  either  side,  and  that  matters  remain 
as  ihey  are ;  the  same  species  of  qualified  sovereignty,  which  has  been  aU 
ready  acquired  in  thai  country  by  England,  beyond  the  49th  parallel  and 
North  and  West  ct  the  Columbia  River,  can  gradually,  in  one  form  or  an- 
other, be  acquired  by  the  United  States,  over  ihatbame  part  of  the  country, 
as  well  as  other  portions;  and  whenever  the  time  shall  come,  as  it  proba- 
bly will,  sooner  or  later,  when  the  aggregate  extent  ol  country,  covered  by 
this  qualified  sovereignty  of  the  United  States,  will  greatly  exceed  the  aggre- 
gale  extend  of  country  coverei.  by  the  qualified  sovereignty  of  England;  the 
English  portions  of  the  country,  and  England  herself,  will,  by  that  time,  in 
all  probability  be  perlectly  willing  that  the  United  States  shall  assume  ex- 
claaive  sovereignty  over  the  whole ;  or,  rather,  perhaps,  the  two  qufilified 
sovereignties  will  quietly  coalesce  into  one  independent  government,  and 
such  indeed  the  government  of  that  coantry  ought  to  be,  aa  Mr  Gallatin 
contends.  What  then  are  the  United  Stales  to  gain  by  giving  the  notice  ? 
Clearly  nothing. 

It  is  idle  then  to  think  of  giving  it;  and  those  who  propose  to  give  it  either 
do  not  understand  the  law  of  the  case,  or  are  desiroos  of  perverting  the  law. 
Some  of  theiB  may  indeed  be  lawyers,  so  called,  or  so  calling  themselves ; 
bat  they  appear  to  be  mnch  belter  acquainted  with  the  contemptible  ma- 
chinery ot.party  politics,  than  with  the  pages  of  Coke  or  Blackstone— Hale 
Hargrave,  or  Selden— Grotius  or  Vattel.  Such  men,  we  are  truly  sorry  to 
say,  are  many  of  our  public  functionaries,  who,  through  ignorance  or  wil- 
l\ilness,  or  both,  have  done  much  to  mislead  public  opinion  upon  this  sub- 
ject. They  seldom  or  never  speak  or  write  upon  the  subject  or  allude  to  it  i  \ 
any  way,  without  saying  bmething  which  is  calculated  to  have  that  effect* 
Not  content  with  asserting  that  the  whole  country  belongs  to  the  United 
States,  they  studiously  affect  to  speak  of  it  on  all  occasions  as  *  our  terri- 
tory,' and  as  being  'in  our  possession,'  when  less  arrogant  and  offensive  Ian. 
gaage  would  just  as  well  answer  their  purpose.  What  right  have  they 
thus  wantonly  to  jeopardize  the  lives  and  property  of  us  the  people,  by  such 
causeless  provocation  of  a  foreign  nation,  and  one  especially,  with  whom 
it  in  so  desirable,  so  almost  indispensable  to  onr  national  prosperity,  to 
caltivate  friendly  relations  1    This  we  say  again,  is  an  abuse  and  perver- 


60 


■ioa  of  (be  lalhority  which  we  the  people  have  delegated  to  theni.  And 
they  may  depend,  it  will  go  far  to  deprive  them  of  the  respect  and  ea:eem 
and  coufiuance  ol  every  prudent  man  of  all  parties.  'Our  territory 'and 
'  in  our  poisessiioa  !'  iVhy,  we  have  not  as  yet  a  loot  of  territory— we  do 
not  own  a  fout  of  land  beyond  the  Rocky  Mountains — for  the  very  suffi- 
cient  reason  that  wa  can  claim  no  land  there  as  ours,  until  we  have 
first  occupied  it,  and  in  our  nationul  capacity  we  have  not  occupied  an 
inch  of  the  country.  To  talk  of  its  btiiig  '  our  territory' and  '  in  our  pos- 
sefsion,'  under  such  eircumstance»,  is  exceedingly  shallow  talk,  let  it  b« 
whosA  talk  it  may. 

Some  of  these  men  have  told  us  that  we  are  to  regard  the  agents  of  the 
Hudson's  Bay  Company  in  that  country  merely  as  'our  tenants  at  willt* 
Can  anything  be  more  ridiculous  1  Is  it  really  ignorance,  or  is  it  prrverse- 
uass  1  They  '  our  tenants  at  will'— the  first  occupants  of  a  country,  which 
most  clearly  belonged  to  all  the  world  1  Can  folly  go  further  1  Call 
them  what  we  please,  we  shall,  no  doubt,  find  them  ugly  customers,  it 
we  undeitake  to  eject  them.  We  have  no  hesitation  to  tell  the  men  who 
talk  in  this  wsy,  that  they  either  do  not  understand  the  very  first  princi- 
ples ol  the  subject,  or  iheir  hearts  are  fatally  bent  on  mischief,  ami  their 
patriotism  is  a  shsm.  Is  it  too  much  to  aay  ot  any  man,  that  he  knows 
nothing  about  the  matter,  who  can  gravely  declare,  as  a  certain  Senator 
is  said  to  have  done,  that  he  finds  a  solution  of  this  question  in  the  tretty 
of  Utrecht  1  And  what  can  the  treaty  of  Utrecht,  made  in  1713  or  U, 
have  to  do  with  s.  dispute  about  the  country  beyond  the  Rocky  Mountains 
in  18461  The  very  children  at  school  know  that  this  is  impossible,  and 
would  laugh  at  the  suggestion.  What  did  the  negotiators  of  that  day  knov 
or  care  about  that  couiitry,  and  wha'.  bad  ibey  to  do  with  it  1  The  hon- 
ourable Senator  might  as  well  pretend  that  he  finds  a  solution  of  theqtiea* 
tion  in  the  first  chapter  ot  Genesis. 

But  to  conclude;  we  have  no  he&itation  in  saying  that  Ens;land  has  made 
our  government  a  liberal  offt^r— the  oiler  to  reiinqui&h  to  us  all  those  parts 
of  the  country  of  which  she  is  not  already  the  first  occupant,  under  a  fair 
and  reasonable,  or  at  any  rate,  not  cxiravasant  application  of  the  doctrines 
of  construe*  ive  possession  and  constructive  sovereignty.  She  has  even  of^ 
lered  to  share  with  us  the  navigation  of  the  Columbia  River,  o(  which  shtf 
is  without  doubt  the  first  occupant,  the  pretences  of  the  U.  S.  to  contrArj 
notwithstanding.  To  say  that  we  will  not  accept  this  ofier,  nnr  submit  the 
question  to  arbitration,  is  unequaled  infatuation— it  is  taking  a  stand  iq 
wiiich  tbfl  people  of  this  country,  we  predict  with  confidence,  will  not  sus- 


6i 


(hem.  And 
!ct  and  eceein 
territory' and 
rltory— we  do 
he  rery  suffi- 
htil  we  have 
occupied  an 
d  '  io  our  pos- 
talk,  let  it  be 

agents  of  the 
ania  at  will!' 
is  it  prrverse- 
:ountry,  which 
urther  1    Call 
castomera,  it 
the  men  who 
iry  first  princi- 
hief,  and  their 
ihat  he  knows 
:ertain  Senator 
in  in  the  treaty 
i    1713  or  H, 
:ky  Mountains 
mpossible,  and 
that  day  know 
iti    Thehon. 
ion  of  the  qoea* 

;land  has  made 
alt  those  parts 
,  under  a  fair 
>f  (he  doctrines 
)e  has  even  of- 
',  of  which  sh<} 
S.  to  contra  r J 
nor  submit  the 
ing  a  stand  ip 

!,  will  not  8US< 


tain  the  Aduiinistratiun.— Yuu  ni<ij  di-|ioiid  upon  it,  Mr.  Pulk,  (biis  thing 
will  never  do.  They  will  ch>  eiliiily  go  all  length*  io  vindiia  ins  the  clear 
andjukt  rigblsof  the  country,  tiiber  against  England  or  ava'.nst  the  world, 
if  needful}  but  if  you  pei'sixt  in  urging  your  mistaken  vie^vii  uf  their  rij<hl, 
and  caussiessiy  assume  an  aggressive  attitude  towards  foreign  nations, you 
may  rest  assured,  that  you  will  soun  Icel  ihe  weight  of  popular  leseniment. 
Ii  is  a  great  national  conlrover»/,  on  which  the  attention  of  the  whole  woild 
is  fixed.  There  is  scarcely  a  lawyer  un  earth,  who  will  not  rigidly  scruti- 
nize every  word  which  you  and  your  Secre(ary  have  uttered,  and  u«  will 
venture  (o  affirm,  (nat  an  immense  majority  of  the  profession  will  condemn 
your  pre(ension»,  will  ridicule  your  arguments,  and  reprobate  your  folly. 
They  will  tell  you  thai  you  are  wrons— altogelh«r  wrong— that  the  United 
Stales  are  shut  up  by  the  convention  of  1818  to  an  equitable  partition  uf  the 
country— that  such  was,  nodoubt,  the  meaning  of  the  statesmen  and  dipla- 
roatists  who  acted  on  behalt  the  United  States  in  framing  that  convention 
whatever  any  of  them  may  now  say— that  such  is  the  legal  import,  the  fair 
construction  of  the  instrument,  and  that  after  a  quarter  of  a  century  of  ac- 
quiescence in  such  an  arrangement,  you  cannot  now  evade  it.  They  will 
tell  you  that  if  the  negotialors  of  (he  United  States  on  that  occasion  had  con- 
sidered the  exclusive  claim  of  the  United  States  to  be  '  clear  and  unques- 
tionable,' and  had  iutended  to  keep  the  question  open,  they  might  and  ought 
to  have  protested  against  any  u^e  or  occupation  of  the  country  by  England 
in  any  shape: — that  the  reason  why  they  d'd  not  do  this  was,  that  the  question 
manitestly  uepended  on  the  firrt  occupancy  of  the  country,  and  it  was  clear- 
ly seen  by  them,  that  if  they  should  allow  England,  without  any  conven- 
tional arrangement,  to  become  (he  fiist  occupant,  as  she  was  then  likely  to 
become,  and  has  since  in  fact  becoma,  of  a  large  proportion  of  the  country, 
the  claim  ot  the  United  States,  even  under  a  protest,  would  be  foreclosed  ; 
—that  they  wero  therefore  willing  to  make  sure  ut  an  equal  undivided  moie- 
ty of  (he  country,  subject  only  to  the  claioLs  of  other  nations ;  and  to  the 
condition  that  the  arrangement  should  not  be  coi  ^irucd  to  prevent  either 
party,  so  long  as  it  continued  in  force,  and  until  it  should  be  superseded  by 
a  partition,  from  asserting  any  claim  to  the  country  or  maKingaoy  use  or 
appropriation  of  its  soil  or  itn  waters,  which  should  not  necessarily  involve 
(he  exercise  of  exclusive  sovi^rci^nty.  They  will  tell  you  that  this  was  the 
meaning  of  the  subuniinaic  saving  ilause  above  discussed — nothing  more ; 
and  that  all  jour  late  proceedings  are  a  viola:ion  of  the  spirit  of  that  con- 
vention, an  insult  to  the  common  tense  of  the  world. 


62 

Ii  was  our  intention  before  dismissing  this  sabject,  to  comment  at  Urge 
upon  ceriaia  minor  topics  incidentally  noticed  and  partially  discussed  in  the 
preceding  Tracts;  but  we  have  extended  our  observations  to  so  great  a 
length  (hat  we  forbear,  as  the  topics  alluded  to  are  not  very  important,  and 
especially  as  we  juJge,  from  many  indications,  that  the  public  mind  is  be- 
coming sufflciently  enlightened  on  the  subject,  and  that  ere  long  it  will  be 
lully  understood  by  every  intelligent  man  in  the  country. 


il 


•  ,;■■'■■>  i.;iw  .ij. 


.  ■  ..J  ;5 


i;-  vv^iKB! 


r.    ,.i     ,i        *i        '■  .   ,.i-* 


1  /■ ;. 


^j-f 


